Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 6895 

three years. The SBA has approved 

these definitions. The Commission will 

not know how many licensees will be 

small or very small businesses until the 

auction, if required, is held. 

D. Description of Projected Reporting, 

Recordkeeping and Other Compliance 

Requirements 

50. Should the Commission decide to 

adopt any procedural rules governing 

petitions for forbearance, the associated 

rules potentially could modify or 

impose new reporting or recordkeeping 

requirements. For example, we seek 

comment on the possible need for rules 

governing the form and content of 

forbearance petitions, such as 

‘‘complete-as-filed’’ requirements and 

obligations for forbearance petitioners to 

demonstrate that they have satisfied 

each element of the forbearance 

standard. The Commission also seeks 

comment on the possible need or rules 

governing the scope and interpretation 

of protective orders in forbearance 

proceedings, including rules governing 

the submission of, access to, and use of 

information submitted pursuant to 

protective orders in forbearance 

proceedings. In addition, we seek 

comment on the need for rules 

establishing timetables for Commission 

proceedings addressing forbearance 

petitions, including requirements 

governing modification of forbearance 

petitions and processes for ex parte 

filings. We further seek comment on 

whether we should adopt procedural 

requirements governing petitions for 

reconsideration of forbearance 

decisions. The Commission also seeks 

comment on the need for any other 

procedural rules governing forbearance 

petitions, the scope of application of 

such rules, and the appropriate 

remedies for violation should the 

Commission adopt such rules. These 

proposals may impose additional 

reporting and recordkeeping 

requirements on entities. Also, we seek 

comment on the effects of any of these 

proposals on small entities. Entities, 

especially small businesses, are 

encouraged to quantify the costs and 

benefits or any reporting requirement 

that may be established in this 

proceeding. 

E. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

51. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

(among others) the following four 

alternatives: (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities. 

52. The Commission’s primary 

objective is to implement the ‘‘procompetitive, deregulatory’’ framework 

established in sections 10 and 332 of the 

Act. We seek comment on the burdens, 

including those placed on small 

carriers, associated with related 

Commission rules and whether the 

Commission should adopt different 

requirements for small businesses. 

F. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

53. None. 

Ordering Clauses 

54. Accordingly, it is ordered that 

pursuant to sections 1, 4(i), 4(j), 10, 303, 

332 and 403 of the Communications Act 

of 1934, as amended, 47 U.S.C. 151, 

154(i)–(j), 160, 303, 332, 403, this Notice 

of Proposed Rulemaking in WC Docket 

No. 07–267 is adopted. 

55. It is further ordered that the 

Covad, et al. Petition to Establish 

Procedural Requirements to Govern 

Proceedings for Forbearance Under 

Section 10 of the Communications Act 

of 1934, as Amended, WC Docket No. 

07–267 (filed Sept. 19, 2007), is granted 

to the extent indicated herein and 

otherwise is denied. 

56. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this NPRM, including the Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E8–2180 Filed 2–5–08; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 226 

[Docket No. 070801431–7787–01] 

RIN 0648–AV35 

Endangered and Threatened Species; 

Critical Habitat for Threatened Elkhorn 

and Staghorn Corals 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), propose to 

designate critical habitat for elkhorn 

(Acropora palmata) and staghorn (A. 

cervicornis) corals, which we listed as 

threatened under the Endangered 

Species Act of 1973, as amended (ESA), 

on May 9, 2006. Four specific areas are 

proposed for designation: the Florida 

unit, which comprises approximately 

3,301 square miles (8,671 sq km) of 

marine habitat; the Puerto Rico unit, 

which comprises approximately 1,383 

square miles (3,582 sq km) of marine 

habitat; the St. John/St. Thomas unit, 

which comprises approximately 121 

square miles (313 sq km) of marine 

habitat; and the St. Croix unit, which 

comprises approximately 126 square 

miles (326 sq km) of marine habitat. We 

propose to exclude one military site, 

comprising approximately 47 square 

miles (123 sq km), because of national 

security impacts. 

We are soliciting comments from the 

public on all aspects of the proposal, 

including our identification and 

consideration of the positive and 

negative economic, national security, 

and other relevant impacts of the 

proposed designation, and the areas we 

propose to exclude from the 

designation. A draft impacts report 

prepared pursuant to section 4(b)(2) of 

the ESA in support of this proposal is 

also available for public review and 

comment. 

DATES: Comments on this proposal must 

be received by May 6, 2008. Public 

hearings will be held; see 

SUPPLEMENTARY INFORMATION for dates 

and locations. 

ADDRESSES: You may submit comments, 

identified by the Regulation Identifier 

Number (RIN) 0648–AV35, by any of the 

following methods: 

Electronic Submissions: Submit all 

electronic public comments via the 


rwilkins on PROD1PC63 with PROPOSALS
6896 Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

Mail: Assistant Regional 

Administrator, Protected Resources 

Division, NMFS, Southeast Regional 

Office, 263 13th Ave. South, St. 

Petersburg, FL 33701. 

Facsimile (fax) : 727–824–5309. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments. Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

Public Hearing: See SUPPLEMENTARY

INFORMATION for hearing dates and 

locations. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Moore or Sarah Heberling, 

NMFS, at the address above or at 727–

824–5312; or Marta Nammack, NMFS, at 

301–713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

On May 9, 2006, we listed elkhorn 

and staghorn corals as threatened under 

the ESA (71 FR 26852; May 9, 2006). At 

the time of listing, we also announced 

our intention to propose critical habitat 

for elkhorn and staghorn corals. We are 

proposing to designate critical habitat 

for both species through one rule; due 

to their similar life histories, 

distribution, threats, and conservation 

requirements, critical habitat for these 

coral species is overlapping. 

Elkhorn and Staghorn Coral Natural 

History 

The following discussion of the life 

history and reproductive biology of 

threatened corals is based on the best 

scientific data available, including the 

Atlantic Acropora Status Review Report 

(Acropora Biological Review Team, 

2005), and additional information, 

particularly concerning the genetics of 

these corals. 

Acropora spp. are widely distributed 

throughout the Caribbean (U.S.—

Florida, Puerto Rico, U.S. Virgin Islands 

(U.S.V.I.), Navassa; and Antigua and 

Barbuda, Aruba, Bahamas, Barbados, 

Belize, British Virgin Islands, Colombia, 

Costa Rica, Cuba, Dominica, Dominican 

Republic, Grenada, Guadeloupe, Haiti, 

Honduras, Jamaica, Martinique, Mexico, 

Netherlands Antilles, Nicaragua, 

Panama, St. Kitts and Nevis, St. Lucia, 

St. Vincent and the Grenadines, 

Trinidad and Tobago, and Venezuela). 

In general, elkhorn and staghorn corals 

have the same geographic distribution, 

with few exceptions. The northern 

extent (Palm Beach County, Florida) of 

staghorn coral occurrence is farther 

north than that of elkhorn coral 

(Broward County, Florida). Staghorn 

coral commonly grows in more 

protected, deeper water ranging from 5 

to 20 m in depth and has been found in 

rare instances to 60 m. Elkhorn coral 

commonly grows in turbulent shallow 

water on the seaward face of reefs in 

water ranging from 1 to 5 m in depth but 

has been found to 30 m depth. 

Elkhorn and staghorn corals were 

once the most abundant and most 

important species on Caribbean coral 

reefs in terms of accretion of reef 

structure. Relative to other corals, 

elkhorn and staghorn corals have high 

growth rates that have allowed reef 

growth to keep pace with past changes 

in sea level. Both species exhibit 

branching morphologies that provide 

important habitat for other reef 

organisms. Environmental influences 

(e.g., wave action, currents) result in 

morphological variation (e.g., length, 

shape of branches) in both species. 

Staghorn coral is characterized by 

staghorn antler-like colonies with 

cylindrical, straight, or slightly curved 

branches. The diameter of staghorn 

coral branches ranges from 1 to 4 cm, 

and tissue color ranges from golden 

yellow to medium brown. The growing 

tips of staghorn coral tend to be lighter 

or lack color. The linear growth rate for 

staghorn coral has been reported to 

range from 3 to 11.5 cm/year. Today, 

staghorn coral colonies typically exist as 

isolated branches and small thickets, 0.5 

to 1 m across in size, unlike the vast 

fields (thickets) of staghorn found 

commonly during the 1970s. 

Elkhorn coral is the larger species of 

Acropora found in the Atlantic. 

Colonies are flattened to near round 

with frond-like branches. Branches are 

up to 50 cm across and range in 

thickness from 2 to 10 cm, tapering 

towards the branch terminal. Like 

staghorn coral, branches are white near 

the growing tip, and brown to tan away 

from the growing area. The linear 

growth rate for elkhorn coral is reported 

to range from 4 to 11 cm/year. 

Individual colonies can grow to at least 

2 m in height and 4 m in diameter. 

Elkhorn and staghorn corals require 

relatively clear, well-circulated water 

and are almost entirely dependent upon 

sunlight for nourishment. Unlike other 

coral species, neither acroporid species 

is likely to compensate for long-term 

reductions in water clarity with 

alternate food sources, such as 

zooplankton and suspended particulate 

matter. Typical water temperatures in 

which Acropora spp. occur from 21 to 

29 °C, with the species being able to 

tolerate temperatures higher than the 

seasonal maximum for a brief period of 

time (days to weeks depending on the 

magnitude of the temperature 

elevation). The species’ response to 

temperature perturbations is dependent 

on the duration and intensity of the 

event. Both acroporids are susceptible to 

bleaching (loss of symbiotic algae) 

under adverse environmental 

conditions. 

Acropora spp. reproduce both 

sexually and asexually. Elkhorn and 

staghorn corals do not differ 

substantially in their sexual 

reproductive biology. Both species are 

broadcast spawners: male and female 

gametes are released into the water 

column where fertilization takes place. 

Additionally, both species are 

simultaneous hermaphrodites, meaning 

that a given colony will contain both 

male and female reproductive parts 

during the spawning season; however, 

an individual colony or clone will not 

produce viable offspring. The spawning 

season for elkhorn and staghorn corals 

is relatively short, with gametes released 

on only a few nights during July, 

August, and/or September. In most 

populations, spawning is synchronous 

after the full moon during any of these 

3 months. Larger colonies of elkhorn 

and staghorn corals have much higher 

fecundity rates (Soong and Lang, 1992). 

In elkhorn and staghorn corals, 

fertilization and development are 

exclusively external. Embryonic 

development culminates with the 

development of planktonic larvae called 

planulae. Little is known concerning the 

settlement patterns of planula of 

elkhorn and staghorn corals. In general, 

upon proper stimulation, coral larvae, 

whether released from parental colonies 

or developed in the water column 

external to the parental colonies (like 

Acropora spp.), settle and 

metamorphose on appropriate 

substrates. Like most corals, elkhorn 

and staghorn corals require hard, 

consolidated substrate, including 

attached, dead coral skeleton, for their 

larvae to settle. Unlike most other coral 

larvae, elkhorn (and presumably 

staghorn) planulae appear to prefer 

settling on upper, exposed surfaces, 

rather than in dark, cryptic ones, at least 

in a laboratory setting (Szmant and 

Miller, 2005). 

Coral planula larvae experience 

considerable mortality (90 percent or 


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more) from predation or other factors 

prior to settlement and metamorphosis 

(Goreau, et al., 1981). Because newly 

settled corals barely protrude above the 

substrate, juveniles need to reach a 

certain size to reduce damage or 

mortality from impacts such as grazing, 

sediment burial, and algal overgrowth. 

Recent studies examining early 

survivorship indicated that lab cultured 

elkhorn coral settled onto experimental 

limestone plates and placed in the field 

had substantially higher survivorship 

than another spawning coral species, 

Montastraea faveolata, and similar 

survivorship to brooding coral species 

(species that retain developing larvae 

within the parent polyp until an 

advanced stage) over the first 9 months 

following settlement (Szmant and 

Miller, 2005). This pattern corresponds 

to the size of planulae; elkhorn coral 

eggs and larvae are much larger than 

those of Montastraea spp. Overall, older 

recruits (i.e., those that survive to a size 

where they are visible to the human eye, 

probably 1 to 2 years post-settlement) of 

Acropora spp. appear to have similar 

growth and post-settlement mortality 

rates observed in other coral species. 

Studies of Acropora spp. from across 

the Caribbean confirm two overall 

patterns of sexual recruitment: (1) Low 

juvenile densities relative to other coral 

species; and (2) low juvenile densities 

relative to the commonness of adults 

(Porter, 1987). This pattern suggests that 

the composition of the adult population 

is based upon variable recruitment. To 

date, the settlement rates for Acropora 

spp. have not been quantified. 

Few data on the genetic population 

structure of elkhorn and staghorn corals 

exist; however, due to recent advances 

in technology, the genetic population 

structure of the current, depleted 

population is beginning to be 

characterized. Baums, et al. (2005) 

examined the genetic exchange in 

elkhorn coral by sampling and 

genotyping colonies from 11 locations 

throughout its geographic range using 

microsatellite markers. Results indicate 

that elkhorn populations in the eastern 

Caribbean (St. Vincent and the 

Grenadines, U.S.V.I., Curacao, and 

Bonaire) have experienced little or no 

genetic exchange with populations in 

the western Caribbean (Bahamas, 

Florida, Mexico, Panama, Navassa, and 

Mona Island). Mainland Puerto Rico is 

an area of mixing where elkhorn 

populations show genetic contribution 

from both regions, though it is more 

closely connected with the western 

Caribbean. Within these regions, the 

degree of larval exchange appears to be 

asymmetrical, with some locations 

being entirely self-recruiting and some 

receiving immigrants from other 

locations within their region. 

Vollmer and Palumbi (2007) 

examined multilocus sequence data 

from 276 colonies of staghorn coral 

spread across 22 populations from 9 

regions in the Caribbean, Florida, and 

the Bahamas. Their data were consistent 

with the Western-Eastern Caribbean 

subdivision observed in elkhorn coral 

populations by Baums, et al. (2005). 

Additionally, the data indicated that 

regional populations of staghorn 

separated by greater than 500 km are 

genetically differentiated and that gene 

flow across the greater Caribbean is low 

in staghorn coral. This is consistent 

with studies conducted on other 

Caribbean corals showing that gene flow 

is restricted at spatial scales over 500 

km (Fukami, et al., 2004; Baums, et al., 

2005; Brazeau, et al., 2005). 

Furthermore, fine-scale genetic 

differences were observed among reefs 

separated by as little as 2 km, suggesting 

that gene flow in staghorn corals may be 

limited over much smaller spatial scales 

(Vollmer and Palumbi, 2007). 

Both acroporid population studies 

suggest that no population is more or 

less significant to the status of the 

species. Staghorn coral populations on 

one reef exhibit limited ability to seed 

another population separated by large 

distances. Elkhorn coral populations are 

genetically related over larger 

geographic distances; however, because 

sexual recruitment levels are extremely 

low, re-seeding potential is also 

minimal. This regional population 

structure suggests that conservation 

should be implemented at local to 

regional scales because relying on longdistance larval dispersal as a means of 

recovery may be unreliable and 

infeasible. Therefore, protecting source 

populations, in relatively close 

proximity to each other (<500 km), is 

likely the more effective conservation 

alternative (Vollmer and Palumbi, 

2007). 

Elkhorn and staghorn corals, like most 

coral species, also reproduce asexually. 

Asexual reproduction involves 

fragmentation, wherein colony pieces or 

fragments break from a larger colony 

and re-attach to hard, consolidated 

substrate to form a new colony. 

Reattachment occurs when: (1) Live 

coral tissue on the fragment overgrows 

suitable substrate where it touches after 

falling; or (2) encrusting organisms 

settle on the dead basal areas of the 

fragment and cement it to the adjacent 

substrate (Tunnicliffe, 1981). 

Fragmentation results in multiple 

colonies (ramets) that are genetically 

identical, while sexual reproduction 

results in the creation of new genotypes 

(genets). Fragmentation is the most 

common means of forming new elkhorn 

and staghorn coral colonies in most 

populations and plays a major role in 

maintaining local populations when 

sexual recruitment is limited. The larger 

size of fragments compared to planulae 

may result in higher survivorship after 

recruitment (Jackson, 1977, as cited by 

Lirman, 2000). Also unlike sexual 

reproduction, which is restricted 

seasonally for elkhorn coral (Szmant, 

1986, as cited by Lirman, 2000), 

fragmentation can take place yearround. 

Critical Habitat Identification and 

Designation 

Critical habitat is defined by section 

3 of the ESA (and further by 50 CFR 

424.02(d)) as ‘‘(i) the specific areas 

within the geographical area occupied 

by the species, at the time it is listed in 

accordance with the provisions of 

section 4 of this Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed in accordance with the 

provisions of section 4 of this Act, upon 

a determination by the Secretary that 

such areas are essential for the 

conservation of the species.’’ This 

definition provides a step-wise 

approach to identifying areas that may 

be designated as critical habitat for 

listed corals. 

Geographical Areas Occupied by the 

Species 

The best scientific data available 

show the current geographical area 

occupied by both elkhorn and staghorn 

corals has remained unchanged from 

their historical ranges. In other words, 

there is no evidence of range 

constriction for either species. 

‘‘Geographical areas occupied’’ in the 

definition of critical habitat is 

interpreted to mean the current range of 

the species and not every discrete 

location on which individuals of the 

species physically are located (45 FR 

13011; February 27, 1980). In general, 

elkhorn and staghorn corals have the 

same distribution, with few exceptions, 

and are widely distributed throughout 

the Caribbean. The Status of Coral Reefs 

in the Western Atlantic: Results of 

Initial Surveys, Atlantic and Gulf Rapid 

Reef Assessment (AGRRA) Program 

(Lang, 2003) provides results (1997–

2004) of a regional systematic survey of 

corals, including Acropora spp., from 

many locations throughout the 


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Caribbean. AGRRA data (1997–2004) 

indicate that the historic range of both 

species remains intact; staghorn coral is 

rare throughout the range (including 

areas of previously known dense 

occurrence); and elkhorn coral occurs in 

moderation. We also collected data and 

information pertaining to the 

geographical area occupied by these 

species at the time of listing by 

partnering with our Southeast Fisheries 

Science Center (SEFSC), NOAA 

National Centers for Coastal Ocean 

Science Biogeography Team, and the 

U.S. Geological Survey of the 

Department of the Interior. These 

partnerships resulted in the collection 

of geographic information system (GIS) 

and remote sensing data (e.g., benthic 

habitat data, water depth, and presence/ 

absence location data for Acropora spp. 

colonies), which we supplemented with 

relevant information collected from the 

public during comment periods and 

workshops held throughout the ESA 

listing process. 

In Southeast Florida, staghorn coral 

has been documented along the east 

coast as far north as Palm Beach County 

in deeper (16 to 30 m) water (Goldberg, 

1973) and is distributed south and west 

throughout the coral and hardbottom 

habitats of the Florida Keys (Jaap, 1984), 

through Tortugas Bank. Elkhorn coral 

has been reported as far north as 

Broward and Miami-Dade Counties, 

with significant reef development and 

framework construction by this species 

beginning at Ball Buoy Reef in Biscayne 

National Park, extending 

discontinuously southward to the Dry 

Tortugas. 

In Puerto Rico, elkhorn and staghorn 

corals have been reported in patchy 

abundance around the main island and 

isolated offshore locations. In the late 

1970s, both elkhorn and staghorn corals 

occurred in dense and well developed 

thickets on many reefs off the northeast, 

east, south, west and northwest coast, 

and also the offshore islands of Mona, 

Vieques and Culebra (Weil, et al., 

unpublished data). Dense, high profile, 

monospecific thickets of elkhorn and 

staghorn corals have been documented 

in only a few reefs along the southwest 

shore of the main island and isolated 

offshore locations (Weil, et al., 

unpublished data) though recent 

monitoring data for the presence of coral 

are incomplete in coverage around the 

islands. Further, the species have been 

recently documented along the west 

(e.g., Rincon) and northeast coasts (e.g., 

La Cordillera). Additionally, large 

stands of dead elkhorn currently exist 

on the fringing coral reefs along the 

south shoreline (e.g., Punta Picu ́ a, Punta 

Miquillo, Rı ́o Grande, Gua ́nica, La 

Parguera, Mayaguez). It appears that 

elkhorn and staghorn are rare on the 

north shore of Puerto Rico; however, 

there is a thin strip of hardbottom 

substrate on that shore, which may be 

supporting additional unrecorded 

colonies of elkhorn or staghorn. 

The U.S.V.I. also supports 

populations of elkhorn and staghorn 

corals, particularly at Buck Island Reef 

National Monument. St. Croix has coral 

reef and colonized hardbottom 

surrounding the entire island. Data from 

the 1980’s indicate that the species were 

present along the north, eastern, and 

western shores at that time. The GIS 

data we compiled indicate the presence 

of elkhorn and staghorn currently along 

the north, northeastern, south, and 

southeastern shores of St. Croix. 

Monitoring data are incomplete, and it 

is possible that unrecorded colonies are 

present along the western, 

northwestern, or southwestern shores. 

For the islands of St. Thomas and St. 

John, there are limited GIS presence 

data available for elkhorn and staghorn 

corals. However, Grober-Dunsmore, et 

al. (2006) show that from 2001–2003, 

elkhorn colonies were distributed in 

many locations around the island of St. 

John. Additionally, the data we have 

indicate coral reef and coral-colonized 

hard bottom surrounding each of these 

islands as well as the smaller offshore 

islands. Again, it is possible that 

unrecorded colonies are present in these 

areas. 

Navassa Island is a small, 

uninhabited, oceanic island 

approximately 50 km off the southwest 

tip of Haiti managed by U.S. Fish and 

Wildlife Service (FWS) as one 

component of the Caribbean Islands 

National Wildlife Refuge (NWR). Both 

acroporid species are known from 

Navassa, with elkhorn apparently 

increasing in abundance and staghorn 

rare (Miller and Gerstner, 2002). 

Last, there are two known colonies of 

elkhorn at the Flower Garden Banks 

National Marine Sanctuary (FGBNMS), 

located 100 mi (161 km) off the coast of 

Texas in the Gulf of Mexico. The 

FGBNMS is a group of three areas of salt 

domes that rise to approximately 15 m 

water depth and are surrounded by 

depths from 60 to 120 m. The FGBNMS 

is regularly surveyed, and the two 

known colonies, which were only 

recently discovered and are considered 

to be a potential range expansion, are 

constantly monitored. 

Our regulations at 50 CFR 424.12(h) 

state: ‘‘Critical habitat shall not be 

designated within foreign countries or 

in other areas outside of United States 

jurisdiction.’’ Although the geographical 

area occupied by elkhorn and staghorn 

corals includes coastal waters of many 

Caribbean and Central and South 

American nations, we are not proposing 

these areas for designation. The 

geographical area occupied by listed 

coral species which is within the 

jurisdiction of the United States is 

therefore limited to four counties in the 

State of Florida (Palm Beach County, 

Broward County, Miami-Dade County, 

and Monroe County), FGBNMS, and the 

U.S. territories of Puerto Rico, U.S.V.I, 

and Navassa Island. 

Physical or Biological Features 

Essential for Conservation (Primary 

Constituent Elements) 

Within the geographical area 

occupied, critical habitat consists of 

specific areas on which are found those 

physical or biological features essential 

to the conservation of the species 

(hereafter also referred to as essential 

features or ‘‘Primary Constituent 

Elements’’ or ‘‘PCEs’’). Section 3 of the 

ESA (16 U.S.C. 1532(3)) defines the 

terms ‘‘conserve,’’ ‘‘conserving,’’ and 

‘‘conservation’’ to mean: ‘‘To use, and 

the use of, all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to this 

chapter are no longer necessary.’’

Further, our regulations at 50 CFR 

424.12(b) for designating critical habitat 

state that physical and biological 

features that are essential to the 

conservation of a given species and that 

may require special management 

considerations or protection may 

include, but are not limited to: (1) Space 

for individual and population growth, 

and for normal behavior; (2) food, water, 

air, light, minerals, or other nutritional 

or physiological requirements; (3) cover 

or shelter; (4) sites for breeding, 

reproduction, rearing of offspring, 

germination, or seed dispersal; and 

generally, (5) habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. These 

regulations state that we shall focus on 

essential features within the specific 

areas considered for designation. 

As stated in the Atlantic Acropora 

Status Review Report (Acropora 

Biological Review Team, 2005), 

there are several implications of the current 

low population sizes of Acropora spp. 

throughout much of the wider Caribbean. 

First, the number of sexual recruits to a 

population will be most influenced by larval 

availability, recruitment, and early juvenile 

mortality. Because corals cannot move and 

are dependent upon external fertilization in 

order to produce larvae, fertilization success 

declines greatly as adult density declines; 


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this is termed an Allee effect (Levitan 1991). 

To compound the impact, Acropora spp., 

although hermaphroditic, do not effectively 

self-fertilize; gametes must be outcrossed 

with a different genotype to form viable 

offspring. Thus, in populations where 

fragmentation is prevalent, the effective 

density (of genetically distinct adults) will be 

even lower than colony density. It is highly 

likely that this type of recruitment limitation 

(Allee effect) is occurring in some local 

elkhorn and staghorn populations, given 

their state of drastically reduced abundance/ 

density. Simultaneously, when adult 

abundances of elkhorn and staghorn corals 

are reduced, the source for fragments (to 

provide for asexual recruitment) is also 

compromised. These conditions imply that 

once a threshold level of population decline 

has been reached (i.e., a density where 

fertilization success becomes negligible) the 

chances for recovery are low. 

Thus, we determined that based on 

available information, facilitating 

increased incidence of successful sexual 

and asexual reproduction is the key 

objective to the conservation of these 

species. We then turned to determining 

the physical or biological features 

essential to this conservation objective. 

Currently, sexual recruitment of 

elkhorn and staghorn corals is limited in 

some areas and absent in most. 

Compounding the difficulty of 

documenting sexual recruitment is the 

difficulty of visually distinguishing 

some sexual recruits from asexual 

recruits (Miller, et al., 2007). Settlement 

of larvae or attachment of fragments is 

often unsuccessful, given limited 

amounts of appropriate habitat due to 

the shift in benthic community structure 

from coral-dominated to algaedominated that has been documented 

since the 1980s (Hughes and Connell, 

1999). Appropriate habitat for elkhorn 

and staghorn coral recruits to attach and 

grow consists of hard, consolidated 

substrate. In addition to being limited, 

the availability of appropriate habitat for 

successful sexual and asexual 

reproduction is susceptible to becoming 

reduced further because of such factors 

as fleshy macroalgae overgrowing and 

preempting the space available for larval 

settlement, recruitment, and fragment 

reattachment. Similarly, sediment 

accumulating on suitable substrate 

impedes sexual and asexual 

reproductive success by preempting 

available substrate and smothering coral 

recruits. Exacerbating the effect of 

sedimentation is the presence of turf 

algae, which traps the sediment, leading 

to greater amounts of accumulations as 

compared to bare substrate alone. As 

described above, features that will 

facilitate successful larval settlement 

and recruitment, and reattachment of 

asexual fragments, are essential to the 

conservation of elkhorn and staghorn 

corals. Without successful recruits, the 

species will not increase in abundance, 

distribution, and genetic diversity. 

Elkhorn and staghorn corals, like most 

corals, require hard, consolidated 

substrate (i.e., attached, dead coral 

skeleton or hardbottom) for their larvae 

to settle or fragments to reattach. The 

type of substrate available directly 

influences settlement success and 

fragment survivorship. Lirman (2000) 

demonstrated this in a transplant 

experiment using elkhorn coral 

fragments created by a ship grounding. 

Fifty fragments were collected within 24 

hours of fragmentation and assigned to 

one of the following four types of 

substrate: (1) Hardbottom (consolidated 

carbonate framework), (2) rubble (loose, 

dead pieces of elkhorn and staghorn 

corals), (3) sand, and (4) live coral. The 

results showed that the survivorship of 

transplanted fragments was significantly 

affected by the type of substrate, with 

fragment mortality being the greatest for 

those transplanted to sandy bottom (58 

percent loss within the first month and 

71 percent after 4 months). Fragments 

placed on live adult elkhorn coral 

colonies fused to the underlying tissue 

and did not experience any tissue loss; 

and fragments placed on rubble and 

hardbottom substrates showed high 

survivorship. 

Unlike fragments, coral larvae cannot 

attach to living coral (Connell, et al., 

1997). Larvae can settle and attach to 

dead coral skeleton (Jordan-Dahlgren, 

1992; Bonito and Grober-Dunsmore, 

2006) and may settle in particular areas 

in response to chemical cues from 

certain species of crustose coralline 

algae (CCA) (Morse, et al., 1996; 

Heyward and Negri, 1999; Harrington 

and Fabricius, 2004). While algae, 

including CCA and fleshy macroalgae, is 

a natural component of healthy reef 

ecosystems, the recent increase in the 

dominance of fleshy macroalgae as 

major space-occupiers on many 

Caribbean coral reefs impedes the 

recruitment of new corals. This shift in 

benthic community structure (from the 

dominance of stony corals to that of 

fleshy algae) on Caribbean coral reefs is 

generally attributed to the greater 

persistence of fleshy macroalgae under 

reduced grazing regimes due to human 

overexploitation of herbivorous fishes 

(Hughes, 1994) and the regional mass 

mortality of the herbivorous long-spined 

sea urchin in 1983–84. Further, impacts 

to water quality (principally nutrient 

input) coupled with low herbivore 

grazing are also believed to enhance 

fleshy macroalgal productivity. Fleshy 

macroalgae are able to colonize dead 

coral skeleton and other available 

substrate, preempting space available 

for coral recruitment. 

The persistence of fleshy macroalgae 

under reduced grazing regimes has 

impacts on CCA growth, which may 

reduce settlement of coral larvae as CCA 

is thought to provide chemical cues for 

settlement. Most CCA are susceptible to 

fouling by fleshy algae, particularly 

when herbivores are absent (Steneck, 

1986). Patterns observed in St. Croix, 

U.S.V.I., also indicate a strong positive 

correlation between CCA abundance 

and herbivory (Steneck, 1997). A study 

in which Miller, et al. (1999) used cages 

to exclude large herbivores from the 

study site resulted in increased cover of 

both turf algae and macroalgae, and 

cover of CCA decreased. The response 

of CCA to the experimental treatment 

persisted for 2 months following cage 

removal (Miller, et al., 1999). 

Additionally, following the mass 

mortality of the urchin Diadema 

antillarum, significant increases in 

cover of fleshy and filamentous algae 

occurred with parallel decreases in 

cover of CCA (de Ruyter van Steveninck 

and Bak, 1986; Liddel and Ohlhorst, 

1986). The ability of fleshy macroalgae 

to affect growth and survival of CCA has 

indirect, yet important, impacts on the 

ability of coral larvae to successfully 

settle and recruit. 

Several studies show that coral 

recruitment tends to be greater when 

algal biomass is low (Rogers, et al., 

1984; Hughes, 1985; Connell, et al., 

1997; Edmunds, et al., 2004; Birrell, et 

al., 2005; Vermeij, 2006). In addition to 

preempting space for coral larvae 

settlement, many fleshy macroalgae 

produce secondary metabolites with 

generalized toxicity, which also may 

inhibit settlement of coral larvae 

(Kuffner and Paul, 2004). Furthermore, 

algal turfs can trap sediments (Eckman, 

et al., 1989; Kendrik, 1991; Steneck, 

1997; Purcell, 2000; Nugues and 

Roberts, 2003; Wilson, et al., 2003; 

Purcell and Bellwood, 2001), which 

then creates the potential for algal turfs 

and sediments to act in combination to 

hinder coral settlement (Nugues and 

Roberts, 2003; Birrell, et al., 2005). 

These turf algae sediment mats also can 

suppress coral growth under high 

sediment conditions (Nugues and 

Roberts, 2003) and may gradually kill 

the marginal tissues of stony corals with 

which they come into contact (Dustan, 

1977, 1999, as cited by Roy, 2004). 

Sediments enter the reef environment 

through many processes that are natural 

or anthropogenic in origin, including 

erosion of coastline, resuspension of 

bottom sediments, terrestrial run-off, 

and nearshore dredging for coastal 

construction projects and navigation 


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purposes. The rate of sedimentation 

affects reef distribution, community 

structure, growth rates, and coral 

recruitment (Dutra, et al., 2003). 

Accumulation of sediment can smother 

living corals, dead coral skeleton, and 

exposed hardbottom. Sediment 

accumulation on dead coral skeletons 

and exposed hardbottom reduces the 

amount of available substrate suitable 

for coral larvae settlement and fragment 

reattachment (Rogers, 1990; Babcock 

and Smith, 2002). Accumulation of 

sediments is also a major cause of 

mortality in coral recruits (Fabricius, et 

al., 2003). In some instances, if 

mortality of coral recruits does not 

occur under heavy sediment conditions, 

then settled coral planulae may undergo 

reverse metamorphosis and not survive 

(Te, 1992). Sedimentation, therefore, 

impacts the health and survivorship of 

all life stages (i.e., fecund adults, 

fragments, larvae, and recruits) of 

elkhorn and staghorn corals. 

Based on the key conservation 

objective we have identified to date, the 

natural history of elkhorn and staghorn 

corals, and their habitat needs, the 

physical or biological feature of elkhorn 

and staghorn corals’ habitat essential to 

their conservation is substrate of 

suitable quality and availability, in 

water depths from the mean high water 

(MHW) line to 30 m, to support 

successful larval settlement, 

recruitment, and reattachment of 

fragments. For purposes of this 

definition, ‘‘substrate of suitable quality 

and availability’’ means consolidated 

hardbottom or dead coral skeleton that 

is free from fleshy macroalgae cover and 

sediment cover. This feature is essential 

to the conservation of these two species 

due to the extremely limited 

recruitment currently being observed. 

We determined that no other 

environmental features are appropriate 

or necessary for defining critical habitat 

for the two corals. Other than the 

substrate PCE, we cannot conclude that 

any other sufficiently definable feature 

of the environment is essential to the 

corals’ conservation. Other features of 

the corals’ environment, such as water 

temperature, are more appropriately 

viewed as sources of impacts or 

stressors that can harm the corals, rather 

than habitat features that provide a 

conservation function. Therefore, these 

stressors would not be analyzed as 

factors that may contribute to a 

determination whether the corals’

critical habitat is likely to be destroyed 

or adversely modified. Some 

environmental features are also 

subsumed within the definition of the 

substrate PCE; for instance, substrate 

free from macroalgal cover would 

encompass water quality sufficiently 

free of nutrients. 

Specific Areas Within the Geographical 

Area Occupied by the Species 

The definition of critical habitat 

further instructs us to identify specific 

areas on which are found the physical 

or biological features essential to the 

species’ conservation. Our regulations 

state that critical habitat will be defined 

by specific limits using reference points 

and lines on standard topographic maps 

of the area, and referencing each area by 

the State, county, or other local 

governmental unit in which it is located 

(50 CFR 424.12(c)). As discussed below, 

we determined that specific areas in 

FGBNMS and Navassa National Wildlife 

Refuge that contain the PCE do not 

otherwise meet the definition of critical 

habitat. Hence, in this section we only 

describe our identification of the 

specific areas we are proposing to 

include in this designation. 

In addition to information obtained 

from the public, we partnered with 

SEFSC, NOAA Biogeography Team, and 

U.S. Geological Survey to obtain GIS 

and remote sensing data (e.g., benthic 

habitat data, water depth) to compile 

existing data to identify and map areas 

that may contain the identified PCE. 

The following are the major datasets 

upon which we relied. NOAA’s 

National Ocean Service (NOS) and the 

Florida Fish and Wildlife Research 

Institute completed The Benthic Habitat 

Mapping of Florida Coral Reef 

Ecosystems using a series of 450 aerial 

photographs collected in 1991–1992. 

For this mapping effort, coral ecosystem 

ecologists outlined the boundaries of 

specific habitat types by interpreting 

color patterns on the photographs. 

Benthic habitats were classified into 

four major categories—corals, 

seagrasses, hardbottom, and bare 

substrate—and 24 subcategories, such as 

sparse seagrass and patch reef. Each 

habitat type was groundtruthed in the 

field by divers to validate the photointerpretation of the aerial photography. 

Habitat boundaries were georeferenced 

and digitized to create computer maps. 

A similar method was followed by NOS 

using 1999 aerial imagery in developing 

the Benthic Habitat Mapping of Puerto 

Rico and the U.S.V.I. 

Using GIS software, we extracted all 

areas that could be considered potential 

recruitment habitat, including 

hardbottom and coral. The benthic 

habitat information assisted in 

identifying any major gaps in the 

distribution of the substrate PCE. Given 

uncertainties in the age and resolution 

of the data, we were unable to identify 

smaller, discrete specific areas that 

contained the PCE rather than large, 

continuous areas. Thus, we concluded 

that, based upon the best available 

information, although the PCE is 

unevenly dispersed throughout the 

ranges of the species, no major gaps 

existed in the distribution. We further 

limited the specific areas to the 

maximum depth of occurrence of the 

two corals (i.e., 30 m). The 30-m contour 

was extracted from the National 

Geophysical Data Center Coastal Relief 

Model for Puerto Rico & Virgin Islands, 

and Florida. Because Puerto Rico and 

the U.S.V.I. are islands, the contours 

yielded continuous closed polygons. 

However, because the two species only 

occur off specific counties in Florida, 

we used additional boundaries to close 

the polygons. The Florida Area consists 

of all waters contained by the boundary 

beginning at the MHW line at the north 

boundary of Palm Beach County; then 

due east to the 30-m contour; then 

following the 30-m contour to the 

intersection with the FKNMS boundary 

northeast of the Dry Tortugas; then 

following the FKNMS boundary to the 

intersection with the COLREGS line (see 

33 CFR 80.727, 730, 735, and 740) for 

Florida Bay; then following the 

COLREGS line southeast to the 

intersection with Long Key; then 

following the COLREGS line and MHW 

line returning to the beginning point. 

The COLREGS line separates inland 

waters from marine waters. Also 

included are the waters in two shoals 

southwest of the Dry Tortugas bounded 

by the 30-m contour. 

Using the above procedure and 

consistent with our regulations (50 CFR 

424.12(c)), we identified four ‘‘specific 

areas’’ and a few small adjacent areas 

(separated from main areas by water 

depth greater than 30 m) within the 

geographical area occupied by the 

species, at the time of listing, that 

contain the PCE. These areas comprise 

all waters in the depths of 30 m and 

shallower to the MHW or COLREG line 

off: (1) Palm Beach, Broward, MiamiDade, and Monroe Counties, including 

the Marquesas Keys and the Dry 

Tortugas, Florida; (2) Puerto Rico and 

associated Islands; (3) St. John/St. 

Thomas, U.S.V.I.; and (4) St. Croix, 

U.S.V.I.) (see maps). Within these 

specific areas, the PCE consists of 

consolidated hardbottom or dead coral 

skeleton that are free from fleshy 

macroalgae cover and sediment cover. 

The PCE can be found unevenly 

dispersed throughout these four areas 

due to trends in macroalgae coverage, 

and naturally occurring unconsolidated 

sediment and seagrasses dispersed 

within the reef ecosystem. A larger 


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number of smaller specific areas could 

not be identified because the submerged 

nature of the PCE, the limits of available 

information on the distribution of the 

PCE, and limits on mapping 

methodologies make it infeasible to 

define the specific areas containing the 

PCE more finely than described herein. 

Further, based on data about their 

historical distributions, the corals are 

capable of successfully recruiting and 

attaching to available substrate 

anywhere within the boundaries of the 

four specific areas. Given these species’

reduced abundances, the four specific 

areas were identified to include all 

available potential settling substrate 

within the 30 m contour to maximize 

the potential for successful recruitment 

and population growth. 

The PCE is not likely to be present in 

natural sites covered with loose 

sediment, fleshy macroalgal covered 

hardbottom, or seagrasses. Additionally, 

existing man-made structures such as 

aids-to-navigation (ATONs), artificial 

reefs, boat ramps, docks, pilings, 

maintained channels or marinas do not 

provide the PCE that is essential to the 

species’ conservation. Substrate within 

the proposed critical habitat boundaries 

that do not contain the PCE are not part 

of the designation. Federal actions, or 

the effects thereof, limited to these areas 

would not trigger section 7 consultation 

under the ESA, unless they may affect 

the species and/or the PCE in adjacent 

critical habitat. As discussed here and 

in the supporting impacts analysis, 

given the precise definition of the 

proposed PCE, determining whether an 

action may affect the feature can be 

accomplished without entering into an 

ESA section 7 consultation. 

Unoccupied Areas 

ESA section 3(5)(A)(ii) further defines 

critical habitat to include specific areas 

outside the geographical area occupied 

if the areas are determined by the 

Secretary to be essential for the 

conservation of the species. Regulations 

at 50 CFR 424.12(e) specify that we shall 

designate as critical habitat areas 

outside the geographical area presently 

occupied by a species only when a 

designation limited to its present range 

would be inadequate to ensure the 

conservation of the species. At the 

present time, the range of these species 

has not been constricted, and we have 

not identified any areas outside the 

geographical area occupied by the 

species that are essential for their 

conservation. Therefore, we are not 

proposing to designate any unoccupied 

areas for elkhorn and staghorn corals. 

Special Management Considerations or 

Protection 

Specific areas within the geographical 

area occupied by a species may be 

designated as critical habitat only if they 

contain physical or biological features 

that ‘‘may require special management 

considerations or protection.’’ A few 

courts have interpreted aspects of this 

statutory requirement, and the plain 

language aids in its interpretation. For 

instance, the language clearly indicates 

the features, not the specific area 

containing the features, are the focus of 

the ‘‘may require’’ provision. Use of the 

disjunctive ‘‘or’’ also suggests the need 

to give distinct meaning to the terms 

‘‘special management considerations’’

and ‘‘protection.’’ Generally speaking, 

‘‘protection’’ suggests actions to address 

a negative impact or threat of a negative 

impact. ‘‘Management’’ seems plainly 

broader than protection, and could 

include active manipulation of a feature 

or aspects of the environment. Two 

Federal district courts, focusing on the 

term ‘‘may,’’ ruled that features can 

meet this provision based on either 

present requirements for special 

management considerations or 

protections, or on possible future 

requirements. See, Center for Biol. 

Diversity v. Norton, 240 F. Supp. 2d 

1090 (D. Ariz. 2003); Cape Hatteras 

Access Preservation Alliance v. DOI, 

344 F. Supp. 108 (D.D.C. 2004). The 

Arizona district court ruled that the 

provision cannot be interpreted to mean 

that features already covered by an 

existing management plan must be 

determined to require ‘‘additional’’

special management, because the term 

‘‘additional’’ is not in the statute. 

Rather, the court ruled that the 

existence of management plans may be 

evidence that the features in fact require 

special management. Center for Biol. 

Diversity v. Norton, 1096–1100. NMFS’

regulations define ‘‘special management 

considerations or protections’’ to mean 

‘‘any methods or procedures useful in 

protecting physical and biological 

features of the environment for the 

conservation of listed species’’ (50 CFR 

424.02(j)). 

Based on the above, we evaluated 

whether the PCE proposed in this 

document may require special 

management considerations or 

protections by evaluating four criteria: 

(a) Whether there is presently a need 

to manage the feature; 

(b) Whether there is the possibility of 

a need to manage the feature; 

(c) Whether there is presently a 

negative impact on the feature; or 

(d) Whether there is the possibility of 

a negative impact on the feature. 

In evaluating present or possible 

future management needs for the PCE, 

we recognized that the feature in its 

present condition must be the basis for 

a finding that it is essential to the corals’

conservation. In addition, the needs for 

management evaluated in (a) and (b) 

were limited to managing the feature for 

the conservation of the species. In 

evaluating whether the PCE meets either 

criterion (c) or (d), we evaluated direct 

and indirect negative impacts from any 

source (e.g., human or natural). 

However, we only considered the 

criteria to be met if impacts affect or 

have the potential to affect the aspect of 

the feature that makes it essential to the 

conservation of the species. We then 

evaluated whether the PCE met the 

‘‘may require’’ provision separately for 

each of the four ‘‘specific areas’’

proposed for designation, as well as 

Navassa Island and FGBNMS (discussed 

later), as management and protection 

requirements can vary from area to area 

based on such factors as the legal 

authorities applicable to areas and the 

location of the area within the occupied 

range. 

Suitable habitat available for larval 

settlement and recruitment, and asexual 

fragment reattachment, of these coral 

species, is particularly susceptible to 

impacts from human activity because of 

the shallow water depth range (MHW to 

30 m) in which elkhorn and staghorn 

corals commonly grow. The proximity 

of this habitat to coastal areas subject 

this feature to impacts from multiple 

activities including, but not limited to, 

dredging and disposal activities, 

stormwater run-off, coastal and 

maritime construction, land 

development, wastewater and sewage 

outflow discharges, point and non-point 

source pollutant discharges, fishing, 

placement of large vessel anchorages, 

and installation of submerged pipelines 

or cables. The impacts from these 

activities, combined with those from 

natural factors (e.g., major storm events), 

significantly affect the quality and 

quantity of available substrate for these 

threatened species to successfully 

sexually and asexually reproduce. We 

concluded that the PCE is currently and 

will likely continue to be negatively 

impacted by some or all of these factors 

in all four specific areas. 

Overfishing of herbivorous fishes and 

the mass die-off of long-spined sea 

urchin Diadema antillarum are 

considered two of the primary 

contributing factors to the recent shift in 

benthic community structure from the 

dominance of stony corals to that of 

fleshy macroalgae on Caribbean coral 

reefs. In the absence of fish and urchin 

grazing or at very low grazing pressures, 


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coral larvae, algae, and numerous other 

epibenthic organisms settle in high 

numbers, but most young, developing 

coral larvae are rapidly outcompeted for 

space, and their mortality levels are 

high (Sammarco, 1985). The weight of 

evidence suggests that competition 

between algae and corals is widespread 

on coral reefs and is largely mediated by 

herbivory (McCook, et al., 2001). 

An additional factor contributing to 

the dominance of fleshy macroalgae as 

major space-occupiers on many 

Caribbean coral reefs is nutrient 

enrichment. Nutrients are added to coral 

reefs from both point sources (readily 

identifiable inputs where pollutants are 

discharged to receiving surface waters 

from a pipe or drain) and non-point 

sources (inputs that occur over a wide 

area and are associated with particular 

land uses). Anthropogenic sources of 

nutrients include sewage, stormwater 

and agricultural runoff, river discharge, 

and groundwater; however, natural 

oceanographic sources like internal 

waves and upwelling also distribute 

nutrients on coral reefs. Coral reefs have 

been considered to be generally 

nutrient-limited systems, meaning that 

levels of accessible nitrogen and 

phosphorus limit the rates of 

macroalgae growth. When nutrient 

levels are raised in such a system, 

growth rates of fleshy macroalgae can be 

expected to increase, and this can yield 

imbalance and changes in community 

structure. 

The anthropogenic source routes for 

nutrients may also bring additional 

sediments into the coral reef 

environment. Sources of sediment 

include erosion of coastline, 

resuspension of bottom sediments, 

terrestrial run-off (following clearing of 

mangroves and deforestation of 

hillsides), beach renourishment, and 

nearshore dredging and disposal for 

coastal construction projects and for 

navigation purposes. Sediment 

deposition and accumulation affect the 

overall amount of suitable substrate 

available for larval settlement, 

recruitment, and fragment reattachment 

(Babcock and Davies, 1991), and both 

sediment composition and deposition 

affect the survival of juvenile corals 

(Fabricius, et al., 2003). 

The major category of habitat-related 

activities that may affect the PCE for the 

two listed corals is water quality 

management. Activities within this 

category have the potential to negatively 

affect the PCE for elkhorn and staghorn 

corals by altering the quality and 

availability of suitable substrate for 

larval settlement, recruitment, and 

fragment reattachment. Nutrient 

enrichment, via sewage, stormwater and 

agricultural runoff, river discharge, and 

groundwater, is a major factor 

contributing to this shift in benthic 

community structure and preemption of 

available substrate suitable for larval 

settlement, recruitment, and asexual 

fragment reattachment. Additionally, 

sedimentation resulting from land-use 

practices and from dredging and 

disposal activities in all four specific 

areas reduces the overall availability 

and quality of substrate suitable for 

successful sexual and asexual 

reproduction by the two acroporid 

corals. Thus, the PCE currently needs 

and will likely continue to need special 

management or protection. 

Although they fall within U.S. 

jurisdiction and may contain the PCE, 

we are not proposing to include 

FGBNMS and Navassa National Wildlife 

Refuge in our critical habitat 

designation, because we do not believe 

the PCE in these areas requires special 

management considerations or 

protections. Both FGBNMS and Navassa 

Island are remote marine protected areas 

and are not currently exposed to the 

negative impacts and conditions 

needing management discussed for the 

other areas above. Additionally, based 

on available information, we do not 

expect the PCE found within these two 

protected areas to experience negative 

impacts from human or natural sources 

that would diminish the feature’s 

conservation value to the two coral 

species. 

Activities That May Be Affected 

Section 4(b)(8) of the ESA requires 

that we describe briefly and evaluate, in 

any proposed or final regulation to 

designate critical habitat, those 

activities that may destroy or adversely 

modify such habitat or that may be 

affected by such designation. A wide 

variety of activities may affect critical 

habitat and, when carried out, funded, 

or authorized by a Federal agency, will 

require an ESA section 7 consultation. 

Such activities include, but are not 

limited to, dredging and disposal, beach 

renourishment, large vessel anchorages, 

submarine cable/pipeline installation 

and repair, oil and gas exploration, 

pollutant discharge, and oil spill 

prevention and response. Notably, all 

the activities identified that may affect 

the critical habitat may also affect the 

species themselves, if present within the 

action area of a proposed Federal action. 

We believe this proposed critical 

habitat designation will provide Federal 

agencies, private entities, and the public 

with clear notification of critical habitat 

for elkhorn and staghorn corals and the 

boundaries of the habitat. This 

designation will allow Federal agencies 

and others to evaluate the potential 

effects of their activities on critical 

habitat to determine if ESA section 7 

consultation with NMFS is needed 

given the specific definition of the PCE 

above. Consistent with recent agency 

guidance on conducting adverse 

modification analyses (NMFS, 2005), we 

will apply the statutory provisions of 

the ESA, including those in section 3 

that define ‘‘critical habitat’’ and 

‘‘conservation,’’ to determine whether a 

proposed future action might result in 

the destruction or adverse modification 

of critical habitat. 

Application of ESA Section 4(a)(3)(B)(I) 

Section 4(a)(3)(B) prohibits 

designating as critical habitat any lands 

or other geographical areas owned or 

controlled by the Department of Defense 

(DOD), or designated for its use, that are 

subject to an integrated natural 

resources management plan (INRMP), if 

we determine that such a plan provides 

a benefit to the coral species (16 U.S.C. 

1533(a)(3)(B)). The legislative history to 

this provision explains: 

• ‘‘The conferees would expect the 

[Secretary] to assess an INRMP’s potential 

contribution to species conservation, giving 

due regard to those habitat protection, 

maintenance, and improvement projects and 

other related activities specified in the plan 

that address the particular conservation and 

protection needs of the species for which 

critical habitat would otherwise be proposed. 

Consistent with current practice, the 

Secretary would establish criteria that would 

be used to determine if an INRMP benefits 

the listed species for which critical habitat 

would be proposed’’ (Conference Committee 

report, 149 Cong. Rec. H. 10563; November 

6, 2003). 

No areas within the specific areas 

being proposed for designation are 

covered by relevant INRMPs. Although 

Naval Air Station Key West (NASKW) is 

within the specific areas being proposed 

for designation, the current INRMP was 

adopted in 2001 and does not address 

listed corals, nor corals in general. 

NASKW is in the process of updating 

the 2001 INRMP and has issued a draft 

of the document to NMFS for review. If 

the draft INRMP were to become final 

and provide a benefit to the two corals 

as described above, then we would not 

designate critical habitat within the 

boundaries covered by the INRMP. 

NASKW is, however, being proposed for 

exclusion pursuant to section 4(b)(2), as 

explained below. 

Application of ESA Section 4(b)(2) 

The foregoing discussion described 

the specific areas within U.S. 

jurisdiction that fall within the ESA 

section 3(5) definition of critical habitat 

in that they contain the physical feature 


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essential to the corals’ conservation that 

may require special management 

considerations or protection. Before 

including areas in a designation, section 

4(b)(2) of the ESA requires the Secretary 

to take into consideration the economic 

impact, impact on national security, and 

any other relevant impacts of 

designation of any particular area. 

Additionally, the Secretary has the 

discretion to exclude any area from 

designation if he determines the benefits 

of exclusion (that is, avoiding some or 

all of the impacts that would result from 

designation) outweigh the benefits of 

designation based upon the best 

scientific and commercial data 

available. The Secretary may not 

exclude an area from designation if 

exclusion will result in the extinction of 

the species. Because the authority to 

exclude is discretionary, exclusion is 

not required for any particular area 

under any circumstances. 

The analysis of impacts below 

summarizes the comprehensive analysis 

contained in our Draft Section 4(b)(2) 

Report, first by considering economic, 

national security, and other relevant 

impacts that we projected would result 

from including each of the four specific 

areas in the proposed critical habitat 

designation. This consideration 

informed our decision on whether to 

exercise our discretion to propose 

excluding particular areas from the 

designation. Both positive and negative 

impacts were identified and considered 

(these terms are used interchangeably 

with benefits and costs, respectively). 

Impacts were evaluated in quantitative 

terms where feasible, but qualitative 

appraisals were used where that is more 

appropriate to particular impacts. 

The ESA does not define what 

‘‘particular areas’’ means in the context 

of section 4(b)(2), or the relationship of 

particular areas to ‘‘specific areas’’ that 

meet the statute’s definition of critical 

habitat. As there was no biological basis 

to subdivide the four specific critical 

habitat areas into smaller units, we 

treated these areas as the ‘‘particular 

areas’’ for our initial consideration of 

impacts of designation. 

Impacts of Designation 

The primary impacts of a critical 

habitat designation result from the ESA 

section 7(a)(2) requirement that Federal 

agencies ensure their actions are not 

likely to result in the destruction or 

adverse modification of critical habitat. 

Determining these impacts is 

complicated by the fact that section 

7(a)(2) also requires that Federal 

agencies ensure their actions are not 

likely to jeopardize the species’

continued existence. One incremental 

impact of designation is the extent to 

which Federal agencies modify their 

proposed actions to ensure they are not 

likely to destroy or adversely modify the 

critical habitat beyond any 

modifications they would make because 

of listing and the jeopardy requirement. 

When a modification would be required 

due to impacts to both the species and 

critical habitat, the impact of the 

designation may be co-extensive with 

the ESA listing of the species. 

Additional impacts of designation 

include state and local protections that 

may be triggered as a result of 

designation, and positive impacts that 

may arise from conservation of the 

species and their habitat, and education 

of the public to the importance of an 

area for species conservation. 

A Draft ESA 4(b)(2) Report describes 

the impacts analysis in detail (NMFS, 

2007). The report describes the 

projected future Federal activities that 

would trigger section 7 consultation 

requirements because they may affect 

the PCE. Additionally, the report 

describes the project modifications we 

identified that may reduce impacts to 

the PCE, and states whether the 

modifications are more likely to be 

solely a result of the critical habitat 

designation or co-extensive with 

another regulation, including the ESA 

listing of the species. The report also 

identifies the potential national security 

and other relevant impacts that may 

arise due to the proposed critical habitat 

designation. This report is available on 

NMFS’ Southeast Region Web site at 

http://sero.nmfs.noaa.gov/pr/esa/ 

acropora.htm. 

Economic Impacts 

As discussed above, economic 

impacts of the critical habitat 

designation result through 

implementation of section 7 of the ESA 

in consultations with Federal agencies 

to ensure their proposed actions are not 

likely to destroy or adversely modify 

critical habitat. These economic impacts 

may include both administrative and 

project modification costs; economic 

impacts that may be associated with the 

conservation benefits of the designation 

are described later. 

Because elkhorn and staghorn corals 

are newly listed and we lack a lengthy 

consultation history for these species, 

we needed to make assumptions about 

the types of future Federal activities that 

might require section 7 consultation 

under the ESA. We examined the 

consultation record over the last 10 

years, as compiled in our Public 

Consultation Tracking System (PCTS) 

database, to identify types of Federal 

activities that have the potential to 

adversely affect elkhorn or staghorn 

coral critical habitat. We request Federal 

action agencies to provide us with 

information on future consultations if 

our assumptions omitted any future 

actions likely to affect the proposed 

critical habitat. We identified 13 

categories of activities conducted by 7 

Federal action agencies: Airport repair 

and construction; anchorages; 

construction of new aids to navigation; 

beach nourishment and bank 

stabilization; coastal construction; 

discharges to navigable waters; dredging 

and disposal; fishery management; 

maintenance construction; maintenance 

dredging and disposal; military 

installation management; resource 

management; and development or 

modification of water quality standards. 

Notably, all categories of projected 

future actions that may trigger 

consultation because they have the 

potential to adversely affect the PCE 

also have the potential to adversely 

affect the corals themselves. There are 

no categories of activities that would 

trigger consultation on the basis of the 

proposed critical habitat designation 

alone. However, it is feasible that a 

specific future project within a category 

of activity would have impacts on 

critical habitat but not on the species. 

Because the total surface area covered 

by the proposed PCE (although 

unquantified) is far larger than the total 

surface area on which the corals (again 

unquantified) currently occur, it is 

likely there will be more consultations 

with impacts on critical habitat than on 

the species. Nonetheless, it was 

impossible to determine how many of 

those projects there may be over the 10- 

year horizon of our impacts analysis. 

To avoid underestimating impacts, we 

assumed that all of the projected future 

actions in these categories will require 

formal consultations for estimation of 

both administrative and project 

modification costs. This assumption 

likely results in an overestimation of the 

number of future formal consultations. 

We next considered the range of 

modifications we might seek for these 

activities to avoid adverse modification 

of elkhorn and staghorn coral critical 

habitat. We identified 13 potential 

project modifications that we may 

require to reduce impacts to the PCE 

through section 7 consultation under 

the ESA. To be conservative in 

estimating impacts, we assumed that 

project modifications would be required 

to address adverse effects from all 

projected future agency actions 

requiring consultation. Although we 

made the assumption that all potential 

project modifications would be required 

by NMFS, not all of the modifications 


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identified for a specific category of 

activity would be necessary for an 

individual project, so we were unable to 

identify the exact modification or 

combinations of modifications that 

would be required for all future actions. 

We also identified whether a project 

modification would be required due to 

the listing of the species or another 

existing regulatory authority to 

determine if the cost of the project 

modification was likely to be coextensive or incremental. Several 

project modifications (i.e., conditions 

monitoring, diver education, horizontal 

directional drilling (HDD), tunneling or 

anchoring cables and pipelines, 

sediment control measures, fishing gear 

maintenance, and water quality 

standard modification) were 

characterized as fully co-extensive with 

the listing of the species or other 

existing statutory or regulatory 

authority, because the nature of the 

actions that would require these 

modifications typically involve a large 

action area likely to include both the 

PCE and either the listed corals or other 

coral reef resources. Other project 

modifications (i.e., project relocation, 

diver assisted anchoring or mooring 

buoy use, global positioning system 

(GPS) and dynamic positioning vessel 

(DPV) protocol, sand bypassing/ 

backpassing, shoreline protection 

measures, and use of upland or artificial 

sources of sand) were characterized as 

partially co-extensive with the listing of 

the species or other existing statutory or 

regulatory authority such as the Clean 

Water Act because of the typically 

smaller action area of projects that 

would involve these modifications, and 

thus the greater likelihood that specific 

projects would impact only the PCE. We 

did not identify any project 

modification that we expected would 

result in fully incremental costs due to 

the critical habitat designation. 

Table 1 provides a summary of the 

estimated costs, where possible, of 

individual project modifications. The 

Draft ESA 4(b)(2) Report provides a 

detailed description of each project 

modification, methods of determining 

estimated costs, and actions for which it 

may be prescribed. Although we have a 

projection of the number of future 

formal consultations (albeit an 

overestimation), the lack of information 

on specific project designs limits our 

ability to forecast the exact type and 

amount of modifications required. Thus, 

while the costs associated with types of 

project modifications were 

characterized, no total cost of this 

proposed rule could be quantified. 

TABLE 1.—SUMMARY OF POTENTIAL PER-PROJECT COSTS ASSOCIATED WITH SPECIFIC PROJECT MODIFICATIONS—

WHERE INFORMATION WAS AVAILABLE, RANGES OF SCOPES ARE INCLUDED

Project modification Cost Unit Range Approximate 

per project total 

Fully Co-extensive: 

Conditions Monitoring ................. $3.5–6K ......................... per day .......................... 1–400 days ................... $3.5K–2.4M. 

Diver Education .......................... Admin. Cost .................. n/a ................................. n/a ................................. n/a. 

HDD/Tunneling ........................... $1.4–2.4M ..................... per mile ......................... 0.2–31.5 miles .............. $278K–76.9M. 

Pipe Collars or Cable Anchors ... $1.2K ............................. per anchor ..................... 13–2,529 anchors ......... $15.6K–3M. 

Sediment Controls ...................... $43K .............................. per mile ......................... 0.05–7 miles ................. $2–301K. 

Water Quality Standard Modification.Undeterminable ............. n/a ................................. n/a ................................. n/a. 

Partially Co-extensive: 

Project Relocation ...................... Undeterminable ............. n/a ................................. n/a ................................. n/a. 

Diver-assisted Anchoring or 

Mooring Buoy Use.

$300–1,000 ................... per day .......................... n/a ................................. n/a. 

GPS & DPV protocol .................. Undeterminable ............. n/a ................................. n/a ................................. n/a. 

Sand Bypassing or Backpassing $1.5–16K ....................... per cu yd ....................... 75–512K cu yd .............. $113K–8.2M. 

Shoreline Protection Measures .. Undeterminable ............. n/a ................................. n/a ................................. n/a. 

Upland or Artificial Sources of 

Sand.

Undeterminable ............. n/a ................................. n/a ................................. n/a 

In addition to project modification 

costs, administrative costs of 

consultation will be incurred by Federal 

agencies and project permittees or 

grantees as a result of this designation. 

Estimates of the cost of an individual 

consultation were developed from a 

review and analysis of the consultation 

database, as previously discussed, and 

from the estimated ESA section 7 

consultation costs identified in the 

Economic Analysis of Critical Habitat 

Designation for the Gulf Sturgeon (IEc, 

2003) inflated to 2006 dollars (the 2007 

inflation coefficient was not known at 

the time of drafting). Cost figures are 

based on an average level of effort for 

consultations of low or high complexity 

(based on NMFS and other Federal 

agency information), multiplied by the 

appropriate labor rates for NMFS and 

other Federal agency staff. Although the 

PCE occurs in greater abundance than 

the corals and thus the probability that 

a consultation would be required 

because of the critical habitat 

designation is higher than for the listing 

of corals, we were unable to estimate the 

number of consultations that may be 

required on the basis of critical habitat 

alone. Therefore, we present the 

estimated maximum incremental 

administrative costs as averaging 

$827,220 to $1,633,229, annually. 

National Security Impacts 

Previous critical habitat designations 

have recognized that impacts to national 

security result if a designation would 

trigger future ESA section 7 

consultations because a proposed 

military activity ‘‘may affect’’ the 

physical or biological feature(s) 

essential to the listed species’

conservation. Anticipated interference 

with mission-essential training or 

testing or unit readiness, either through 

delays caused by the consultation 

process or through expected 

requirements to modify the action to 

prevent adverse modification of critical 

habitat, has been identified as a negative 

impact of critical habitat designations. 

(See, e.g., Proposed Designation of 

Critical Habitat for the Pacific Coast 

Population of the Western Snowy 

Plover, 71 FR 34571, June 15, 2006, at 

34583; and Proposed Designation of 

Critical Habitat for Southern Resident 

Killer Whales; 69 FR 75608, Dec. 17, 

2004, at 75633.) 

Past designations have also 

recognized that whether national 


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security impacts result from the 

designation depends on whether future 

consultations would be required under 

the jeopardy standard regardless of the 

critical habitat designation, and whether 

the critical habitat designation would 

add new burdens beyond those related 

to the jeopardy consultation. 

As discussed above, based on the past 

10-year consultation history, it is likely 

that consultations with respect to 

activities on DOD facilities will be 

triggered as a result of the proposed 

critical habitat designation. Further, it is 

possible that some consultations will be 

due to the presence of the PCE alone, 

and that adverse modification of the 

PCE could result, thus requiring a 

reasonable and prudent alternative to 

the proposed DOD activity. 

On May 22, 2007, we sent a letter to 

DOD requesting information on national 

security impacts of the proposed critical 

habitat designation, and received a 

response from the Department of the 

Navy (Navy). Further discussions and 

correspondence identified Naval Air 

Station Key West (NASKW) as the only 

installation potentially affected by the 

critical habitat designation. NASKW 

resides solely within the Florida 

specific area of the proposed critical 

habitat (Area 1). No other DOD 

installations were identified as likely to 

be impacted by this proposed 

designation. 

The Navy identified several specific 

activities within NASKW and associated 

annexes that would be adversely 

impacted by requirements to modify the 

actions to avoid destroying or adversely 

modifying critical habitat. These 

activities include: military training and 

readiness; access to, management of, 

and maintenance of piers, harbors, and 

waterfront instrumentation; and support 

for refueling or docking of Federal 

vessels. The Navy considers nearshore 

areas to be under its control pursuant to 

its navigable servitude for purposes of 

national defense under the Submerged 

Lands Act (43 U.S.C. 1314). 

Additionally, the Navy states that 

NASKW and associated annexes 

(including bombing and strafing areas) 

provide training necessary to national 

security and identified the types of 

military activities that take place in the 

areas. The Navy concluded that critical 

habitat designation at NASKW would 

likely impact national security by 

diminishing military readiness through 

the requirement to consult on their 

activities within critical habitat in 

addition to the requirement to consult 

on the two listed corals. We discuss our 

exclusion analysis based on these 

national security impacts below. 

Other Relevant Impacts 

Past critical habitat designations have 

identified two broad categories of other 

relevant impacts: Conservation benefits, 

both to the species and to society as a 

result of designation, and impacts on 

governmental or private entities that are 

implementing existing management 

plans that provide benefits to the listed 

species. Our Draft Section 4(b)(2) Report 

discusses conservation benefits of 

designating the four specific areas to the 

corals, and the benefits of conserving 

the corals to society, in both ecological 

and economic metrics. 

As summarized in the Draft 4(b)(2) 

Report, elkhorn and staghorn corals 

currently provide a range of important 

uses and services to society. Because the 

features that form the basis of the 

critical habitat are essential to, and thus 

contribute to, successful conservation of 

the two listed corals, protection of 

critical habitat from destruction or 

adverse modification may, at minimum, 

prevent further loss of the benefits 

currently provided by the species. 

Moreover, because the PCE is essential 

to increasing the abundance of elkhorn 

and staghorn corals, its successful 

protection may actually contribute to an 

increase in the benefits of these species 

to society in the future. While we 

cannot quantify nor monetize the 

benefits, we believe they are not 

negligible and would be an incremental 

benefit of this designation. However, 

although the PCE is essential to the 

corals’ conservation, critical habitat 

designation alone will not bring about 

their recovery. The benefits of 

conserving elkhorn and staghorn coral 

are, and will continue to be, the result 

of several laws and regulations. 

Elkhorn and staghorn corals are two 

of the major reef-building corals in the 

Caribbean. Over the last 5,000 years, 

they have made a major contribution to 

the structure that makes up the 

Caribbean reef system. The structural 

and ecological roles of Atlantic 

acroporids in the Caribbean are unique 

and cannot be filled by other reefbuilding corals in terms of accretion 

rates and the formation of structurally 

complex reefs. At current levels of 

acroporid abundance, this ecosystem 

function is significantly reduced. Due to 

elkhorn and staghorn corals’ extremely 

reduced abundance, it is likely that 

Caribbean reefs are in an erosional, 

rather than accretional, state. 

In addition to the important functions 

of reef building and reef maintenance 

provided by elkhorn and staghorn 

corals, these species themselves serve as 

fish habitat (Ogden and Ehrlich, 1977; 

Appeldoorn, et al., 1996), including 

essential fish habitat (CFMC, 1998), for 

species of economic and ecological 

importance. Specifically, Lirman (1999) 

reported significantly higher 

abundances of grunts (Haemulidae), 

snappers (Lutjanidae), and sweepers 

(Pempheridae) in areas dominated by 

elkhorn coral compared to other coral 

sites suggesting that fish schools use 

elkhorn colonies preferentially. 

Additionally, Hill (2001) found that 

staghorn coral in a Puerto Rican backreef lagoon was the preferred settlement 

habitat for the white grunt (Haemulon 

plumieri). Numerous reef studies have 

also described the relationship between 

increased habitat complexity and 

increased species richness, abundance, 

and diversity of fishes. Due to their 

branching morphologies, elkhorn and 

staghorn corals provide complexity to 

the coral reef habitat that other common 

species with mounding or plate 

morphologies do not provide. 

Another benefit of elkhorn and 

staghorn corals is provided in the form 

of shoreline protection. Again, due to 

their function as major reef building 

species, elkhorn and staghorn corals 

provide shoreline protection by 

dissipating the force of waves, which 

are a major source of erosion and loss 

of land (NOAA, 2005). For example, in 

2005, the coast of Mexico north of 

Cancun was impacted by Hurricane 

Wilma; wave height recorded just 

offshore of the barrier reef was 11 m 

while wave height at the coast was 

observed to be 3 m (B. van Tussenbroek, 

pers. comm.). Damage to coastal 

structures would have been significantly 

greater had the 11-m waves not been 

dissipated by the reef. 

Lastly, numerous studies have 

identified the economic value of coral 

reefs to tourism and recreation. Of 

particular relevance, Johns, et al. (2003) 

estimated the value of natural reefs to 

reef users, and the contribution of 

natural reefs to the economies of the 

four counties of Florida that are 

associated with the proposed 

designation (discussed below). The 

importance of the benefits elkhorn and 

staghorn corals provide is also 

evidenced by the designation of marine 

protected areas specifically for the 

protection of these species (e.g., Tres 

Palmas Reserve, Puerto Rico). 

Many previous designations have 

evaluated the impacts of designation on 

relationships with, or the efforts of, 

private and public entities that are 

involved in management or 

conservation efforts benefitting listed 

species. Similar to national security 

impacts, impacts on entities responsible 

for natural resource management or 

conservation plans that benefit listed 


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species, or on the functioning of those 

plans, depend on the type and number 

of ESA section 7 consultations and 

potential project modifications that may 

result from the proposed critical habitat 

designation in the areas covered by the 

plans. Several existing resource 

management areas (Florida Keys 

National Marine Sanctuary, Dry 

Tortugas National Park, Dry Tortugas 

Ecological Reserve, Biscayne Bay 

National Park, Buck Island Reef 

National Monument, Virgin Islands 

National Park, and Virgin Islands Coral 

Reef National Monument) will likely 

require section 7 consultation in the 

future when the responsible Federal 

agencies revise their management plans 

or associated regulations or implement 

management actions. Negative impacts 

to these agencies could result if the 

designation interferes with their ability 

to provide for the conservation of the 

species or otherwise hampers 

management of these areas. Because we 

identified that resource management 

was a category of activities that may 

affect both the species and the critical 

habitat and that the project 

modifications required through section 

7 consultation would be the same for 

the species and the PCE, these costs are 

considered to be coextensive. However, 

we found no evidence that relationships 

would be negatively affected or that 

negative impacts to other agencies’

ability to provide for the conservation of 

the corals would result from the 

designation. We also describe in our 

draft 4(b)(2) report that the critical 

habitat designation will provide an 

important unique benefit to the corals 

by protecting settling substrate for 

future coral recruitment and recovery, 

compared to existing laws and 

management plans for these areas that 

focus on protecting existing coral 

resources. 

Synthesis of Impacts Within the Four 

Specific Areas 

As discussed above, no categories of 

Federal actions would require 

consultation in the future solely due to 

the critical habitat designation; all 

projected categories of future actions 

have the potential to adversely affect 

both the PCE and the listed corals. 

However, an individual action within 

these categories may ultimately result in 

impacts to only the PCE because the 

species may not be present within the 

action area. In addition, past actions 

triggered consultation due to effects on 

one or more other listed species within 

the areas covered by the proposed 

designation (e.g., sea turtles, smalltooth 

sawfish, Johnson’s seagrass), but for 

purposes of the impacts analysis we 

assumed these other species 

consultations would not be co-extensive 

with consultations for the corals or the 

PCE. For each of the specific areas, 

whether future consultations are 

incremental impacts of the critical 

habitat designation or are co-extensive 

impacts of the listing or other legal 

authorities will depend on whether the 

listed corals or other coral species are in 

the action area. Based on the relative 

abundance of the PCE and the listed 

corals, or all corals combined, there 

seems to be a higher likelihood that a 

future project could impact the PCE 

alone and thus be an incremental 

impact of designation. On the other 

hand, projects with larger or diffuse 

action areas may have a greater 

likelihood of impacting both the PCE 

and the corals, and the same 

modifications would alleviate both 

types of impacts, so the costs of these 

projects would more likely be coextensive either with the listing or 

existing authorities focused on 

protecting coral reef resources. 

The proposed Florida specific area of 

critical habitat (Area 1) will have the 

greatest number of ESA section 7 

consultations resulting from the 

proposed critical habitat designation 

over the next 10 years, 317 

consultations, or, on average, 31 per 

year; the Puerto Rico specific area (Area 

2) will have the second highest number 

of consultations, 115, or, on average, 

11–12 per year; and the U.S.V.I. specific 

areas combined (Areas 3 and 4) will 

have the lowest number of 

consultations, 41, or, on average, 4 per 

year. The number of future 

consultations is proportional to the 

length of coastline in each of the four 

specific areas: Area 1 is projected to 

experience 66 percent of total 

consultations and it contains 65 percent 

of critical habitat coastline; Area 2 is 

projected to have 25 percent of 

consultations and contains 26 percent of 

shoreline included in the designation; 

and Areas 3 and 4 are projected to have 

9 percent of consultations and contain 

8 percent of total shoreline. In all four 

specific areas USACE-permitted marine 

construction activities comprise the 

largest number of projected future 

actions, in similar percentages across 

the areas (75 percent in Area 1; 65 

percent in Area 2; and 61 percent in 

Areas 3 and 4). We detected no patterns 

or clumping in the geographic 

distribution of projected future actions 

and future consultations and project 

modifications within any of the specific 

areas that would suggest an economic 

basis for focusing our evaluation of 

impacts on smaller areas within any of 

the areas. In other words, no particular 

areas within the specific areas identified 

are expected to incur a disproportionate 

share of the costs of designation. 

As mentioned above, the majority of 

projected ESA section 7 consultations in 

all four specific areas will be USACEauthorized marine construction 

activities, and all of these could involve 

third-party permittees. Although we 

assumed all of these projects will 

require formal consultation due to 

effects on the PCE and the corals to 

avoid underestimating ESA section 7 

impacts, as discussed in our impacts 

report, it is unlikely that all of these 

projects will trigger consultation for 

either the PCE or the corals, or that they 

would require modification to avoid 

adverse impacts. Though our database 

on past consultations is not complete, 

the data indicate that the majority of the 

projects in this category were residential 

dock construction, and as such would 

have been located in protected 

shorelines such as manmade canals 

where the PCE and the corals are not 

routinely found. Even when these 

projects trigger consultation in the 

future, the project modifications that 

may be required as a result of the 

proposed critical habitat may also be 

required by an existing regulatory 

authority, including the ESA listing of 

the two corals. Thus, if both the PCE 

and corals are present, or if another 

regulatory authority would also require 

the project modification, the costs 

associated with these project 

modifications will be co-extensive. 

Many of the other categories of activities 

projected to occur in all four specific 

areas have the potential to have effects 

over larger, more diffuse action areas, 

and thus are more likely to be coextensive costs of the designation (e.g., 

dredging projects, water discharge, and 

water quality regulatory projects). 

We estimated the maximum 

incremental administrative costs of 

conducting ESA section 7 consultation 

for each of the four specific areas. 

Multiplying the total number of 

consultations by the low and high 

estimates of cost yields the following 

ranges of total administrative costs (in 

2006 dollars) per area over the next 10 

years: $5,543,946 to $10,945,740 in Area 

1; $2,011,211 to $3,970,852 in Area 2; 

and $717,040 to $1,415,695 in Areas 3 

and 4. Table 1 above provides a 

summary of the estimated costs, where 

possible, of individual project 

modifications. The Draft Section 4(b)(2) 

Report provides a detailed description 

of each project modification, methods of 

determining estimated costs, and for 

which action(s) it may be prescribed. 

Although we have a projection of the 


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number of future formal consultations 

(albeit an overestimation), the lack of 

information on the specifics of project 

design limits our ability to forecast the 

exact type and amount of modifications 

required. Therefore, while the costs 

associated with types of project 

modifications were characterized, no 

total cost of this proposed rule can be 

quantified accurately. 

Preventing these project impacts is 

expected to contribute to the 

preservation of, and potential increases 

in, economic and other conservation 

benefits in each of the four specific 

areas, as described in the Draft Section 

4(b)(2) Report. In Area 1, the natural 

reefs formed and inhabited by elkhorn 

and staghorn corals provide over $225 

million in average annual use value 

(2003 dollars) and a capitalized value of 

over $7 billion to the four Florida 

counties covered by Area 1. Natural 

reef-related industries provided over 

40,000 jobs in Area 1 in 2003, 

generating over $1 billion in income. 

Area 1 experienced almost $6 million in 

value of commercial reef-dependent fish 

landings in 2005. Available information 

also demonstrates the direct link 

between healthy coral reef ecosystems 

and the value of scuba-diving related 

tourism throughout the Caribbean, 

including Florida, with estimated losses 

in the hundreds of millions of dollars 

region-wide per year if reef degradation 

continues. Coral reefs provided over 87 

percent of average annual commercial 

fish and invertebrate landings in Puerto 

Rico (Area 2) from 1995 to 2002. In 

2005, domestic landings of shallow 

water reef fish comprised about 66 

percent of all fish landed in Puerto Rico 

and were valued at over $1.7 million. 

Tourism is not as important a 

component of Puerto Rico’s overall 

economy as it is in Areas 1, 3, and 4, 

but it may be much more significant for 

the shoreside communities from which 

dive and other reef-related tourism 

activities embark. Tourism accounts for 

80 percent of the U.S.V.I.’s (Area 3) 

Gross Domestic Product and 

employment. One survey documented 

that 100 percent of hotel industry 

respondents stated they believed there 

would be a significant impact on tourist 

visits if the coast and beaches were 

degraded, or fisheries or coral reefs 

declined. In 2005, domestic landings of 

shallow water reef fish comprised about 

83 percent of all fish landed in the 

U.S.V.I. that year and were valued at 

over $3.8 million. 

Conservation benefits to the corals in 

each of the four specific areas are 

expected to result from the designation. 

As we have determined, recovery of 

elkhorn and staghorn corals cannot 

succeed without protection of the PCE 

from destruction or adverse 

modification. No existing laws or 

regulations protect the PCE from 

destruction or adverse modification 

with a specific focus on increasing coral 

abundance and eventual recovery. 

Given the extremely low current 

abundance of the corals and 

characteristics of their sexual 

reproduction (e.g., limited success over 

long ranges), protecting the PCE 

throughout the corals’ range and 

throughout each of the four specific 

areas is extremely important for 

conservation of these species. We also 

describe the potential educational and 

awareness benefits to the corals that 

may result from the critical habitat 

designation in our Draft 4(b)(2) Report. 

Regarding economic impacts, the 

limitations to the type and amount of 

existing information do not allow us to 

predict the total costs and benefits of the 

proposed designation. Nevertheless, we 

believe that our characterization of the 

types of costs and benefits that may 

result from the designation, in particular 

circumstances, may provide some useful 

information to Federal action agencies 

and potential project permittees. We 

have based the proposed designation on 

a very specifically defined feature 

essential to the corals’ conservation, 

which allowed us to identify the few, 

specific effects of human activities that 

may adversely affect the corals and thus 

require section 7 consultation under the 

ESA (sedimentation, nutrification, and 

physical destruction). We identified 

potential routine project modifications 

we may require to avoid destroying or 

adversely modifying the essential 

substrate feature. In some cases, these 

modifications are common 

environmental mitigation measures that 

are already being performed under 

existing laws and regulations that seek 

to prevent or minimize adverse impacts 

to coral reef or marine resources in 

general. Thus, we believe that parties 

planning future activities within the 

four specific areas proposed for 

designation will be able to predict the 

potential added costs of their projects 

resulting from the designation based on 

their knowledge of the location, size, 

and timing of their planned activities. 

We have discussed to the extent 

possible the circumstances under which 

section 7 impacts will be incremental 

impacts of this rule, or co-extensive 

impacts of this rule and the listing of the 

corals or another existing legal 

authority. We believe that the 

limitations of current information about 

potential future projects do not allow us 

to be more specific in our estimates of 

the section 7 impacts (administrative 

consultation and project modification 

costs) of the proposed designation. In 

addition, based on available 

information, we did not identify any 

patterns or clumping in the distribution 

of future projects (and the associated 

consultations and potential 

modifications) either between or within 

the four specific areas proposed for 

designation that would suggest any 

disproportionate impact of the 

designation. 

Similarly, with regard to the 

conservation benefits of the proposed 

designation, we determined that the 

designation will result in benefits to 

society. We provide a literature survey 

of the valuation of coral reefs to provide 

context for the readers on benefits of 

protective measures. Given the potential 

number and type of future ESA section 

7 consultations, we expect that the 

designation will prevent adverse effects 

to the proposed critical habitat feature, 

and thus assist in maintaining the 

feature’s conservation function for the 

two corals. We believe the designation 

will assist in preventing further losses of 

the corals and, eventually, in increased 

abundance of the two species. By 

contributing to the continued existence 

of these two species and eventually 

their increased abundance, the proposed 

designation will, at minimum, prevent 

loss of important societal benefits 

described above that are currently 

provided by the species, and potentially 

increase these benefits over time. 

Regarding impacts on Federal 

agencies responsible for managing 

resources in areas proposed for 

designation, we expect section 7 

consultation responsibilities will result 

from the designation as described above. 

However, as explained further in the 

section 4(b)(2) report, we determined 

that the designation will not negatively 

impact the management or operation of 

existing managed areas or the Federal 

agencies responsible for these areas. We 

further determined that the designation 

provides an added conservation benefit 

to the corals beyond the benefits 

provided by the existing management 

plans and associated regulations. We 

believe our evaluation and 

consideration of the potential impacts 

above support our conclusion that there 

are no economic or other relevant 

impacts that warrant our proposing to 

exclude particular areas from the 

designation. Given the limitations on 

existing data and information, we are 

specifically requesting comments and 

information that may be useful in 

refining our analysis, including any 

omitted categories of activities that may 

affect the essential feature and more 


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6908 Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 

precise cost estimates for project 

modifications. 

As discussed in the next section, we 

are exercising our discretion to propose 

excluding particular areas from the 

critical habitat designation based on 

national security impacts. 

Proposed Exclusions Under Section 

4(b)(2) 

Impacts to national security as a result 

of the proposed critical habitat 

designation are expected to occur in 

Area 1, specifically on 47.3 sq miles 

(123 sq km) of NASKW. Based on 

information provided to us by the Navy, 

national security interests would be 

negatively impacted by the designation, 

because the potential additional 

consultations and project modifications 

to avoid adversely modifying the PCE 

would interfere with military training 

and readiness. Based on these 

considerations, we propose exclusion of 

the particular areas identified by the 

Navy from the critical habitat 

designation. 

The benefit of excluding the NASKW 

particular areas is that the Navy would 

only be required to comply with the 

jeopardy prohibition of ESA section 

7(a)(2) and not the adverse modification 

prohibition. The Navy maintains that 

the additional commitment of resources 

in completing an adverse modification 

analysis, and any change in its activities 

to avoid adverse modification of critical 

habitat, would likely reduce its 

readiness capability. Given that the 

Navy is currently actively engaged in 

training, maintaining, and deploying 

forces in the current war effort, this 

reduction in readiness could reduce the 

ability of the military to ensure national 

security. 

The best scientific and commercial 

data available indicate that the PCE is 

rare within the proposed exclusion area. 

Further, the area to be excluded 

comprises only 1.1 percent of Area 1. 

The corals and habitat will still be 

protected through ESA section 7 

consultations that prohibit jeopardizing 

the species’ continued existence and 

require modifications to minimize the 

impacts of incidental take. Further, 

there are no other Federal activities that 

might adversely impact the proposed 

critical habitat that would be exempted 

from future consultation requirements 

due to this proposed exclusion, since 

these areas are under exclusive military 

control. Therefore, in our judgment, the 

benefit of including the particular area 

of NASKW is outweighed by the 

national security benefit the Navy will 

gain by not consulting on critical 

habitat. Given the small percentage of 

Area 1 encompassed by this area, we 

conclude that exclusion will not result 

in extinction of either elkhorn or 

staghorn corals. 

Critical Habitat Designation 

We are proposing to designate 

approximately 4,931 square miles 

(12,569 sq km) of marine habitat within 

the geographical area occupied by 

elkhorn and staghorn corals in Florida, 

Puerto Rico, and the U.S.V.I. The 

proposed specific areas contain the 

substrate physical feature, or PCE, we 

determined to be essential to the 

conservation of these species and that 

may require special management 

considerations or protection. 

Public Comments Solicited 

We request that interested persons 

submit comments, information, maps, 

and suggestions concerning this 

proposed rule and supporting draft 

4(b)(2) report during the comment 

period (see DATES). We are soliciting 

comments or suggestions from the 

public, other concerned governments 

and agencies, the scientific community, 

industry, or any other interested party 

concerning this proposed rule. We are 

also soliciting comments on the draft 

4(b)(2) report and its analysis of 

economic, national security, and other 

relevant impacts and proposed 

exclusions. You may submit your 

comments and materials concerning this 

proposal by any one of several methods 

(see ADDRESSES). The proposed rule, 

maps, fact sheets, references, and other 

materials relating to this proposal can be 

found on the NMFS Southeast Region 

Web site at http://sero.nmfs.noaa.gov/ 

pr/protres.htm. We will consider all 

comments pertaining to this designation 

received during the comment period in 

preparing the final rule. Accordingly, 

the final designation may differ from 

this proposal. 

Public Hearings 

50 CFR 424.16(c)(3) requires the 

Secretary to promptly hold at least one 

public hearing if any person requests 

one within 45 days of publication of a 

proposed rule to designate critical 

habitat. Such hearings provide the 

opportunity for interested individuals 

and parties to give comments, exchange 

information and opinions, and engage in 

a constructive dialogue concerning this 

proposed rule. We encourage the 

public’s involvement in these hearings. 

Based on the high level of public 

interest in elkhorn and staghorn corals, 

public meetings have been scheduled 

for: 

1. Tuesday, March 4, 2008, 7 p.m. to 

9 p.m., IGFA Events Hall, 300 Gulf 

Stream Way, Dania Beach, Florida. 

2. Wednesday, March 5, 2008, 7 p.m. 

to 9 p.m., Marathon Government Center, 

2798 Overseas Highway, Marathon, 

Florida. 

3. Tuesday, March 11, 2008, 6 p.m. to 

8 p.m., Administration and Conference 

Center (ACC), 1st Floor Conference 

Room, University of the Virgin Islands, 

#2 John Brewer’s Bay, St. Thomas, 

U.S.V.I./Simulcast Location on St. 

Croix: The Great Hall, Room #134, 

University of the Virgin Islands, RR 1, 

Box 10000 Kingshill, St. Croix, U.S.V.I. 

4. Wednesday, March 12, 2008, 7 p.m. 

to 9 p.m., 4th Floor Conference Room, 

Environmental Building, Cruz Matos, 

State Road #838, km 6.3, Sector El 

Cinco, Rio Piedras, Puerto Rico. 

Requests for additional public hearings 

must be made in writing (see 

ADDRESSES) by March 24, 2008. 

Peer Review 

In December 2004, the Office of 

Management and Budget (OMB) issued 

a Final Information Quality Bulletin for 

Peer Review establishing minimum peer 

review standards, a transparent process 

for public disclosure of peer review 

planning, and opportunities for public 

participation. The OMB Bulletin, 

implemented under the Information 

Quality Act (Pub. L. 106–554), is 

intended to enhance the quality and 

credibility of the Federal government’s 

scientific information, and applies to 

influential or highly influential 

scientific information disseminated on 

or after June 16, 2005. To satisfy our 

requirements under the OMB Bulletin, 

we obtained independent peer review of 

the scientific information that supports 

this proposal to designate critical 

habitat for elkhorn and staghorn corals 

and incorporated the peer review 

comments prior to dissemination of this 

proposed rulemaking. A Draft 4(b)(2) 

Report (NMFS, 2007) that supports the 

proposal to designate critical habitat for 

elkhorn and staghorn corals was also 

peer reviewed and is available on our 

Web site (see ADDRESSES). 

We determined that this action is 

consistent to the maximum extent 

practicable with the enforceable policies 

of the approved coastal management 

programs of Florida, Puerto Rico, and 

U.S.V.I. The determination has been 

submitted for review by the responsible 

state agencies under section 307 of the 

Coastal Zone Management Act. 

This proposed rule has been 

determined to be significant under 

Executive Order (E.O.) 12866. We have 

integrated the regulatory principles of 

the E.O. into the development of this 

proposed rule to the extent consistent 

with the mandatory duty to designate 

critical habitat, as defined in the ESA. 


rwilkins on PROD1PC63 with PROPOSALS
Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 6909 

We prepared an initial regulatory 

flexibility analysis (IRFA) pursuant to 

section 603 of the Regulatory Flexibility 

Act (5 U.S.C. 601, et seq.), which 

describes the economic impact this 

proposed rule, if adopted, would have 

on small entities. A description of the 

action, why it is being considered, and 

its legal basis are included in the 

preamble section of this proposed rule. 

Small businesses, small nonprofit 

organizations, and small governmental 

jurisdictions may be affected by this 

proposed designation if they engage in 

activities that would affect the essential 

feature identified in this proposed 

designation and if they receive funding 

or authorization for such activity from a 

Federal agency. Such activities would 

trigger ESA section 7 consultation 

requirements and potential 

requirements to modify proposed 

activities to avoid destroying or 

adversely modifying the critical habitat. 

The consultation record from which we 

have projected likely Federal actions 

over the next 10 years indicates that 

applicants for Federal permits or funds 

have included small entities. For 

example, marine contractors have been 

the recipients of USACE permits for 

dock construction; some of these 

contractors were small entities. 

According to the Small Business 

Administration, businesses in the Heavy 

and Civil Engineering Construction 

subsector (NAICS Code 237990), which 

includes firms involved in marine 

construction projects such as 

breakwater, dock, pier, jetty, seawall 

and harbor construction, must have 

average annual receipts of no more than 

$31 million to qualify as a small 

business (dredging contractors that 

perform at least 40 percent of the 

volume dredged with their own 

equipment, or equipment owned by 

another small concern are considered 

small businesses if their average annual 

receipts are less than or equal to $18.5 

million). Our consultation database does 

not track the identity of past permit 

recipients or whether the recipients 

were small entities, so we have no basis 

to determine the percentage of grantees 

or permittees that may be small 

businesses in the future. We do know 

from the more recent consultation 

history that small governmental 

jurisdictions (population less than or 

equal to 50,000) have received USACE 

permits for beach renourishment. Small 

businesses in the tourist and 

commercial fishing industries may 

benefit from the rule, as conservation of 

elkhorn and staghorn corals is expected 

to result in increased direct and indirect 

use of, and values derived from, coral 

reefs. We encourage small businesses, 

small governmental jurisdictions, and 

other small entities to provide comment 

on whether they may be affected by this 

rulemaking to help us provide an 

accurate estimate of the number of small 

entities to which the proposed rule will 

apply. 

We projected that, on average, 

approximately 39 Federal projects with 

non-federal grantees or permittees will 

be affected by implementation of the 

proposed critical habitat designation, 

annually, across all four areas proposed 

for inclusion in the critical habitat 

designation. Some of these grantees or 

permittees could be small entities, or 

could hire small entities to assist in 

project implementation. Historically, 

these projects have involved pipeline 

installation and maintenance, mooring 

construction and maintenance, dock/ 

pier construction and repair, marina 

construction, bridge repair and 

construction, new dredging, 

maintenance dredging, NPDES/water 

quality standards, cable installation, 

beach nourishment, shoreline 

stabilization, reef ball construction and 

installation, and port construction. 

Potential project modifications we have 

identified that may be required to 

prevent these types of projects from 

adversely modifying critical habitat 

include: project relocation; 

environmental conditions monitoring; 

GPS and DPV protocols; diver assisted 

anchoring or mooring buoy use; pipe 

collars or cable anchoring; shoreline 

protection measures; use of upland or 

artificial sources of sand; direction 

drilling or tunneling; and sediment and 

turbidity control measures (see Tables 

20, 21 and 24 of the Draft Section 4(b)(2) 

Report). 

Even though we cannot determine 

relative numbers of small and large 

entities that may be affected by this 

proposed rule, there is no indication 

that affected project applicants would 

be limited to, nor disproportionately 

comprise, small entities. It is unclear 

whether small entities would be placed 

at a competitive disadvantage compared 

to large entities. However, as described 

in the Draft Section 4(b)(2) Report, 

consultations and project modifications 

will be required based on the type of 

permitted action and its associated 

impacts on the essential critical habitat 

feature. Because the costs of many 

potential project modifications that may 

be required to avoid adverse 

modification of critical habitat are unit 

costs (e.g., per mile of shoreline, per 

cubic yard of sand moved) such that 

total project modification costs would 

be proportional to the size of the project, 

it is not unreasonable to assume that 

larger entities would be involved in 

implementing the larger projects with 

proportionally larger project 

modification costs. 

It is also unclear whether the 

proposed rule will significantly reduce 

profits or revenue for small businesses. 

As discussed throughout the Draft 

Section 4(b)(2) Report, we made 

assumptions that all of the future 

consultations will be formal, and all 

will require project modifications; but 

this is likely an overestimation. In 

addition, as stated above, though it is 

not possible to determine the exact cost 

of any given project modification 

resulting from consultation, the smaller 

projects most likely to be undertaken by 

small entities would likely result in 

relatively small modification costs. 

Finally, many of the modifications 

identified to reduce the impact of a 

project on critical habitat may be a 

baseline requirement either due to the 

ESA listing of the species or under 

another regulatory authority, notably the 

Clean Water Act. 

There are no record-keeping 

requirements associated with the 

proposed rule. Similarly, there are no 

reporting requirements other than those 

that might be associated with reporting 

on the progress and success of 

implementing project modifications, 

which do not require specific skills to 

satisfy. However, third party applicants 

or permittees would be expected to 

incur costs associated with participating 

in the administrative process of 

consultation along with the permitting 

Federal agency. Such third party costs 

of consultation were estimated for the 

2003 designation of critical habitat for 

Gulf sturgeon in the southeast United 

States. In 2006 dollars, per consultation 

administrative costs for third parties are 

estimated to average from $3,251 to 

$4,596. 

We encourage all small businesses, 

small governmental jurisdictions, and 

other small entities that may be affected 

by this rule to provide comment on the 

potential economic impacts of the 

proposed designation, such as 

anticipated costs of consultation and 

potential project modifications, to 

improve the above analysis. 

No Federal laws or regulations 

duplicate or conflict with the proposed 

rule. Existing Federal laws and 

regulations overlap with the proposed 

rule only to the extent that they provide 

protection to marine natural resources 

or corals generally. However, no 

existing laws or regulations specifically 

prohibit destruction or adverse 

modification of critical habitat for, and 

focus on the recovery of, elkhorn and 

staghorn corals. 


rwilkins on PROD1PC63 with PROPOSALS
6910 Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 

The alternatives to the proposed 

designation considered consisted of a 

no-action alternative and an alternative 

based on a broader conservation 

objective that would include multiple 

physical or biological features of the 

corals’ environment in the designation. 

The no-action, or no designation, 

alternative would result in no additional 

ESA section 7 consultations relative to 

the status quo of the species’ listing and 

finalization of a recently proposed ESA 

section 4(d) rule. However, while 

additional administrative and potential 

project modification costs would not be 

incurred under this alternative, this 

alternative is not necessarily a no cost 

alternative, including to small entities, 

given the potential loss of existing 

benefits provided by the corals if they 

continue to decline due to failure to 

protect the substrate PCE from adverse 

modification. The multiple features 

alternative was expected to increase the 

number and complexity of section 7 

consultations and associated costs to 

small entities without concomitant 

increased conservation benefits to the 

corals, because we believe the 

additional features are already 

effectively managed through the 

jeopardy analysis required under ESA 

section 7 or subsumed within the 

substrate PCE identified for this 

designation. 

An environmental analysis as 

provided for under National 

Environmental Policy Act for critical 

habitat designations made pursuant to 

the ESA is not required. See Douglas 

County v. Babbitt, 48 F.3d 1495 (9th Cir. 

1995), cert. denied, 116 S.Ct. 698 (1996). 

Pursuant to the Executive Order on 

Federalism, E.O. 13132, the Assistant 

Secretary for Legislative and 

Intergovernmental Affairs will provide 

notice of the proposed action and 

request comments from the appropriate 

official(s) of the states and territories in 

which the two species occur. 

The proposed action has undergone a 

pre-dissemination review and 

determined to be in compliance with 

applicable information quality 

guidelines implementing the 

Information Quality Act (Section 515 of 

Pub. L. 106–554). 

This action does not contain a 

collection-of-information requirement 

for purposes of the Paperwork 

Reduction Act. 

This proposed rule is consistent with 

E.O. 13089, which is intended to 

preserve and protect the biodiversity, 

health, heritage, and social and 

economic value of U.S. coral reef 

ecosystems and the marine 

environment. 

References Cited 

A complete list of all references cited 

in this rulemaking can be found on our 

Web site at http://sero.nmfs.noaa.gov/ 

pr/protres.htm and is available upon 

request from the NMFS Southeast 

Regional Office in St. Petersburg, 

Florida (see ADDRESSES). 

List of Subjects 

50 CFR Part 223 

Endangered and threatened species, 

Exports, Imports, Transporation. 

50 CFR Part 226 

Endangered and threatened species. 

Dated: January 31, 2008. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, we propose to amend 50 CFR 

parts 223 and 226 as set forth below: 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

1. The authority citation for part 223 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543; subpart B, 

§ 223.201–202 issued under 16 U.S.C. 1361 et 

seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9). 

§ 223.102 [Amended] 

2. Amend § 223.102 by removing the 

text, ‘‘NA’’, from the column labeled 

‘‘Citation for Critical Habitat 

Designation’’ in paragraphs (d)(1) and 

(d)(2) and adding in its place the 

Federal Register citation for the final 

rule associated with this proposed rule. 

PART 226—DESIGNATED CRITICAL 

HABITAT 

3. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

4. Add § 226.215, to read as follows: 

§ 226.215 Critical habitat for Elkhorn 

(Acropora palmata) and Staghorn (A. 

cervicornis) Corals. 

Critical habitat is designated for both 

elkhorn and staghorn corals as 

described in this section. The textual 

descriptions of critical habitat in 

paragraphs (b) and (c) of this section are 

the definitive source for determining the 

critical habitat boundaries. The 

overview maps in paragraph (d) of this 

section are provided for general 

guidance purposes only, and not as a 

definitive source for determining critical 

habitat boundaries. 

(a) Physical Feature Essential to the 

Conservation of Threatened Corals. The 

physical feature essential to the 

conservation of elkhorn and staghorn 

corals is: substrate of suitable quality 

and availability, in water depths from 

mean high water to 30 m, to support 

larval settlement and recruitment, and 

reattachment of asexual fragments. 

‘‘Substrate of suitable quality and 

availability’’ is defined as natural 

consolidated hardbottom or dead coral 

skeleton that is free from fleshy 

macroalgae cover and sediment cover. 

(b) Critical Habitat Areas. Critical 

habitat includes one specific area of the 

Atlantic Ocean offshore of Palm Beach, 

Broward, Miami-Dade, and Monroe 

counties, Florida, and three specific 

areas of the Atlantic Ocean and 

Caribbean Sea offshore of the U.S. 

Territories of Puerto Rico and the U.S. 

Virgin Islands. The boundaries of each 

specific critical habitat area are 

described below. Generally, the seaward 

boundary is the 

30-m depth contour and the shoreward 

boundary is the line of mean high water 

(MHW; see 33 CFR 329.12(a)). Within 

these boundaries, discrete areas of water 

deeper than 30 m are not included. 

(1) Florida Area: The boundary for the 

Florida area begins at the MHW line at 

the north boundary of Palm Beach 

County at 26°58′13.5′′ N; then due east 

to the point of intersection with the 

30-m contour; then following the 30-m 

contour to 24°45′20.6′′ N, 82°34′35.4′′ W, 

the point of intersection with the 

Florida Key National Marine Sanctuary 

(FKNMS) boundary (see 15 CFR 

922.161); then following the FKNMS 

boundary to the point of intersection 

with the COLREGS line (see 33 CFR 

80.727, 730, 735, and 740) at 24°54′56.8′′ 

N, 80°56′25.2′′ W; then following the 

COLREGS line to a point of intersection 

on Long Key at 24°49′1.7′′ N, 80°49′36.1′′ 

W; then following the COLREGS line 

and MHW line returning to the 

beginning point. The Florida area also 

includes two shoal areas southwest of 

the Dry Tortugas bounded by the 30-m 

contour. 

(2) Puerto Rico Area: All areas 

surrounding the islands of the 

Commonwealth of Puerto Rico, 30 m in 

depth and shallower, seaward of the 

COLREGS line (see 33 CFR 80.738). 

(3) St. Thomas/St. John Area: All 

areas surrounding the islands of St. 

Thomas and St. John, U.S. Virgin 

Islands, and smaller surrounding 

islands, 30 m in depth and shallower. 

(4) St. Croix Area: All areas 

surrounding the island of St. Croix, U.S. 

Virgin Islands, 30 m in depth and 

shallower. 

(c) Areas excluded from critical 

habitat on the basis of national security 

impacts. Critical habitat does not 


rwilkins on PROD1PC63 with PROPOSALS
Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 6911 

include the following particular areas in 

the state of Florida: 

(1) All waters surrounding Naval Air 

Station, Key West from the shoreline 

delimited by the line of mean high 

water to a distance of 46 m. 

(2) All waters identified as naval 

restricted areas and danger zone at 33 

CFR 334.610, as follows: 

(i) All waters within 100 yards of the 

south shoreline of the Harry S. Truman 

Annex, beginning at a point on the 

shore at 24°32′45.3′′ N, 81°47′51′′ W; 

thence to a point 100 yards due south 

of the south end of Whitehead Street of 

24°32′42.3′′ N, 81°47′51′′ W; thence 

extending westerly, paralleling the 

southerly shoreline of the Harry S. 

Truman Annex, to 24°32′37.6′′ N, 

81°48′32′′ W, thence northerly to the 

shore at 24°32′41′′ N, 81°48′31′′ W. 

(ii) All waters within 100 yards of the 

westerly shoreline of the Harry S. 

Truman Annex and all waters within a 

portion of the Truman Annex Harbor, as 

defined by a line beginning on the shore 

at 24°33′00′′ N, 81°48′41.7′′ W; thence to 

a point 100 yards due west at 24°33′00′′ 

N, 81°48′45′′ W; thence northerly, 

paralleling the westerly shoreline of the 

Harry S. Truman Annex, including a 

portion of the Truman Annex Harbor 

entrance, to 24°33′23′′ N, 81°48′37′′ W; 

thence southeasterly to the shore (sea 

wall) at 24°33′19.3′′ N, 81°48′28.7′′ W. 

(iii) All waters within 100 yards of the 

U.S. Coast Guard Station and the 

westerly end of Trumbo Point Annex 

beginning at the shore at 24°33′47.6′′ N, 

81°47′55.6′′ W; thence westerly to 

24°33′48′′ N, 81°48′00.9′′ W; thence due 

south to 24°33′45.8′′ N, 81°48′00.9′′ W; 

thence westerly to 24°33′47′′ N, 

81°48′12′′ W; thence northerly to 

24°34′06.2′′ N, 81°48′10′′ W; thence 

easterly to a point joining the restricted 

area around Fleming Key at 24°34′03.3′′ 

N, 81°47′55′′ W. 

(iv) Beginning at 24°34′03.3′′ N, 

81°47′55′′ W; proceed northwesterly, 

maintaining a distance of 100 yards 

from the shoreline of Fleming Key, 

except for a clearance of approximately 

400 yards across the mouth of Fleming 

Cove near the southwesterly end of 

Fleming Key, continue around Fleming 

Key to a point easterly of the southeast 

corner of Fleming Key at 24°34′00.8′′ N, 

81°47′37.5′′ W; thence easterly to 

24°33′57.6′′ N, 81°47′20′′ W; thence 

southerly to a point on the shore at 

24°33′54.7′′ N, 81°47′20.9′′ W. 

(v) All waters contiguous to the 

southwesterly shoreline of Boca Chica 

Key beginning at a point on the 

southwest shoreline at 24°33′24′′ N, 

81°42′30′′ W; proceed due south 100 

yards to 24°33′20.4′′ N, 81°42′30′′ W; 

thence, maintaining a distance of 100 

yards from the shoreline, proceed 

westerly and northerly to 24°34′03′′ N, 

81°42′47′′ W; thence due north to a 

point at the easterly end of the U.S. 

Highway 1 (Boca Chica Channel) bridge 

at 24°34′39′′ N, 81°42′47′′ W. 

(vi) Danger zone. All waters within an 

area along the northeast side of the 

Naval Air Station on Boca Chica Key 

defined by a line beginning at 

24°35.472′ N, 81°41.824′ W; thence 

proceed in a northerly direction to a 

point at 24°36.289′ N, 81°41.437′ W; 

thence proceed westerly to a point at 

24°36.392′ N, 81°41.970′ W; thence to a 

point on shore at 24°35.698′ N, 

81°41.981′ W. 

(3) All waters contained within the 

area identified as the Fleming Key Drop 

Zone, as defined by a rectangle with 

bounding coordinate pairs of: 

24°35′42.2′′ N and 81°47′43.6′′ W; 

24°35′42.6′′ N and 81°46′27.3′′ W; 

24°35′13.0′′ N and 81°47′38.2′′ W; and 

24°35′13.3′′ N and 81°46′27.2′′ W. 

(4) All waters identified as bombing 

and strafing target areas at 33 CFR 

334.620(a)(2)(i) through (iii), as follows: 

(i) A circular area immediately west of 

Marquesas Keys with a radius of two 

nautical miles having its center at 

24°33.4′ and 82°10.9′, not to include 

land area and area within Marquesas 

Keys. 

(ii) A circular area located directly 

west of Marquesas Keys with a radius of 

three statute miles having its center at 

24°35.6′ and 82°11.6′, not to include 

land area within Marquesas Keys. 

(iii) A circular area located west of 

Marquesas Keys with a radius of two 

nautical miles having its center at 

24°34′30′′ and 82°14′00′′ . 

(d) Overview maps of designated 

critical habitat for elkhorn and staghorn 

corals follow. 

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[FR Doc. 08–497 Filed 1–31–08; 4:13pm] 

BILLING CODE 3510–22–C 


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